2018False204 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Communication Means)

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A

He/she shall be sentenced to prosecution in the Republic of Korea, except in the case of a court trial.

Attorney Han-chul, Park Byung-soo

November 23, 2018

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

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

In order to order the provisional payment of an amount equivalent to the above fine.

Criminal facts

The defendant and the victim B (the age of 40) did not only enter the C Graduate Public Policy Department and doctoral degree courses in the latter half of 2016, but only talked with D daily contents.

On August 3, 2017, the Defendant sent the victim’s mobile phone using a mobile phone D to satisfy his own sexual desire in the si, Seo-gu, Busan, Seo-gu, Busan, for the purpose of inducing or satisfying his own or another person’s sexual desire in the si, the Defendant sent the victim’s mobile phone with the word “a dial-a-a-mail, Do, drinking, or drinking, which is immediately abial,” and thereby, sent the victim a word, sound, writing, picture, image, or object that may cause a sense of sexual humiliation or aversion through telephone, mail, computer, or other telecommunications media for the purpose of inducing or satisfying his or another person’s sexual desire.

Summary of Evidence

1. Partial statement of the defendant;

1. Police suspect interrogation protocol of the accused;

1. The police statement concerning B;

1. B written statements;

1. Dial copies;

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

The Defendant, while under the influence of alcohol, expressed the sense that the victim had a usual sense, and asked the intent to have a sexual relationship with the Defendant to report seriously. Therefore, it is difficult to view that the Defendant’s act was aimed at inducing or meeting his/her own or another person’s sexual desire, and it is difficult to view the content of the above letter as an act of the Defendant’s act as an act of causing a sense of sexual humiliation or aversion by itself.

2. Determination

A. Whether “the purpose of inducing or meeting another person’s sexual desire” under Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes is to be determined reasonably in light of social norms by taking into account various circumstances, such as the relationship between the defendant and the victim, motive and background of the act, means and method of the act, details and manner of the act, the nature and extent of the other party’s nature and scope, etc. In addition, “the act of causing a sexual humiliation or aversion” refers to the act of causing the victim to feel a sense of shame or insult as a human being beyond mere dissipated or dissure, or to cause the victim to feel a sense of sense of shame or insult as a human being, and contrary to the concept of the average social person’s sexual attitude. Whether such sexual humiliation or aversion may be caused is reasonable on the basis of the general and average person. In particular, in the case of a sexual humiliation, it should be determined on the basis of the ordinary and average person of the same gender and age as the victim (see, e.g., Supreme Court Decision 2016Do21389).

B. In light of the evidence duly admitted and examined by this court, the following facts are acknowledged. In light of the relationship between the Defendant and the victim, the circumstance and details of the Defendant sent the instant letters, and the victim’s response, etc., it can be sufficiently recognized that the Defendant sent the said letters to the victim for the purpose of meeting his sexual desire under the influence of alcohol. Thus, the Defendant and the defense counsel’s above assertion is rejected.

(1) From the second half of the year of 2016, the Defendant and the victim came to know that they were enrolled in the public policy department and doctoral degree course at C graduate Schools. The Defendant and the victim (born in 1964) knew that they were the father-child (here in 1964) and the father-child (here in 197) who have a family from the beginning of the above doctoral degree course.

② From the second half of 2016 to August 2017, the date of the instant case, the Defendant and the victim met in schools, etc. or exchanged letters, etc. using D. However, this is merely a motive for two persons to attend a doctoral degree course at a graduate school, and was aimed at strengthening social friendship and ties within a social sense. On the contrary, there is no difference between the Defendant and the victim to view each other as the subject of the teaching system, or to exchange letters, etc. with one another to express hosity on the premise that the Defendant and the victim are the subject of the teaching system.

③ In the course of the investigation, the Defendant also stated to the effect that, in the process of the investigation, the Defendant did not suggest the victim’s sexual intercourse, nor did the victim have made any indication of the victim’s sexual intercourse with the victim, and that the victim did not have any indication of the victim’s sexual intercourse with the victim as a sexual intercourse. The Defendant stated to the effect that “The Defendant thought that the victim was friendly with each other in the text exchanged for one year with the victim, as it appears that the victim was a female, and that the victim was aware of the victim’s sexual intercourse with the victim, and that the victim did not have any strong response to the Defendant’s refusal, and sent the above letters.”

④ Around August 3, 2017, the date of the instant crime, the Defendant proposed that the Defendant’s husband and wife defected with the Defendant’s husband and wife, and the victim accepted it and provided three persons with the meals. The victim, even at a low meeting, she saw the victim’s dial-a-a-law speech, such as “Isle, Isle?, Isle?? Isle? Isle?? Isle? Isle? Is that the Defendant sent the same letters as stated in the instant facts charged, such as “Isle’s cell phone,” and the Defendant sent them to the instant complaint.

(5) The injured party expressed the above letters from the Defendant and expressed the testimony at the time of “the injured party is frighten and frighten,” and “the injured party frighten and frighten in numbers.”

6) On August 2017, the Defendant was able to take up two semesters at the end of the decision-making process, and consulted with the police officer on August 24, 2017, and sought the F Gender Equality Counseling Center on August 24, 2017. The F Gender Equality Counseling Center received from the Defendant on August 26, 2017 a written oath stating “The Defendant does not contact the victim, does not do any similar act, and does not register the victim until the victim graduated.”

7. On September 5, 2017, after the opening of school, the Defendant heard an explanation that a criminal charge may be filed, separate from the measures of the counseling center, at the time of visiting the above counseling center, and submitted the instant complaint.

Application of Statutes

1. Article applicable to criminal facts;

Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order to complete programs;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Non-existence of Duty to Register and Submit Personal Information

According to the proviso to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, where a fine is sentenced for a crime under Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the defendant is excluded from a person

Exemption from Employment Restriction Orders

In full view of the Defendant’s age, occupation, risk of repeating a crime, contents and motive of the instant crime, method of and consequences of the instant crime, seriousness of the crime, the degree and expected side effects of the Defendant’s disadvantage and anticipated side effects, the preventive effect of the sex offense subject to registration that may be achieved therefrom, and the effect of protecting the victims, etc., the above order shall not be issued against the Defendant on the ground that there are special circumstances where the order is not given pursuant to the proviso of Article 56(1) of the Act on the Protection

It is so decided as per Disposition for the above reasons.

Judges Yang Jae-ho