2016Gohap1050, 1187(Joint) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

(13) Recognized crime by indecent act by minors under the age of 13: Protection of the sex of children and juveniles.

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

(Indecent act by compulsion, indecent act by compulsion.

A

Han Jin-hee, Go Jin-Jin (Public Prosecution), Lee Young-Jin (Public Prosecution), Lee Jong-Jin (Public Trial)

Law Firm B, Attorney C

March 10, 2017

A defendant shall be punished by imprisonment for three years.

except that the execution of the above sentence shall be suspended for four years from the date this judgment became final and conclusive.

The defendant shall be ordered to take a lecture for sexual assault treatment for 80 hours.

Criminal facts

"2016, 1050"

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

A. On October 4, 2016, at around 08:07, the Defendant asked the victim E (V, who is 12 years of age) attending the front of the Gangnam-gu Seoul Metropolitan Government D to “whether he or she is a certain grade”, and then write his or her hands over the shoulder of the victim, and then write the shoulder of the victim.

B. On October 4, 2016, around 08:10 on October 4, 2016, the Defendant asked the Victim F (Woo, 12 years of age) who is attending the same place as the above paragraph (a) to “Is what grade?” and then write the Victim’s shoulder.

C. On April 10, 2016, at around 08:06, the Defendant asked the Victim G (Woo, 15 years of age) who attended the same place as the above paragraph (a) to “whether he is a certain school year or not.” In this regard, the Defendant was able to go to the following school by asking the Victim G (Woo, 15 years of age), who is going to go to the Defendant’s hand, and the victim was boomed on the left side of the victim’s left side.

D. On October 4, 2016, around 08:14, the Defendant asked the victim I (here, 14 years of age) who walked in the front way of the Gangnam-gu Seoul Metropolitan Government H to "whether he/she is likely to live", and the Defendant got out of the victim's hand to drink the Defendant, and got out of the victim's chests twice.

E. On October 4, 2016, at around 08:17, the Defendant: (a) got off the part of the victim J (Inn, 15 years old) who talks in the same place as the above paragraph (d) and got out to the left chest of the victim.

Accordingly, the defendant committed indecent acts against the victims of children and juveniles respectively.

2. Indecent acts by compulsion;

On October 4, 2016, at around 08:25, the Defendant 208:25, the Defendant her walked on the front side of K-gu Seoul, Gangnam-gu, by raising the Defendant’s shoulder on the shoulder of the victim and taking charge of the victim’s left chest with his left hand.

Accordingly, the defendant committed indecent acts by force against the victim.

"2016 Gohap1187"

3. Indecent acts by compulsion;

On July 22, 2016, around 00:02, the Defendant returned books before the N located in Suwon-si M in Suwon-si, and discovered the victim (one’s name, half, and 41 years old) who returned books, and the Defendant committed an indecent act against the victim by using his own hand.

Summary of Evidence

[2016 Highest 1050]

1. Statement of the accused in the first protocol of trial;

1. Each police protocol of statement against G, I, J, L, and E;

1. A written statement;

1. Investigation report (Securing and analyzing CCTV video images at the site of the incident);

[2016Gohap1147]

1. Statement of the accused in the second protocol of trial;

1. (False Statement) The police officer's statement;

1. A P statement;

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 Juveniles against Sexual Abuse, Article 298 of the Criminal Act, Article 298 of the Criminal Act, and Article 298 of the Criminal Act of each of the following.

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes with punishment prescribed in Article 1(b) of the Act on the Protection of Children and Juveniles against Sexual Abuse as stated in Article 1(b) of the Decision with the largest punishment and penalty)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

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. Article 47 (1) or 49 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from disclosure and notification orders, the proviso to Article 49 (1) or the proviso to Article 50 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (public disclosure and notification of registered information);

An order needs to be prudent in that it may have a significant impact on the defendant. In this case, there are special circumstances in which the defendant should not disclose and notify personal information of the defendant, such as the fact that there is no history of punishment for a sexual crime. In light of all the circumstances such as the defendant's age, family environment, etc., it appears that the effect of prevention of recidivism can be expected even by taking the registration of personal information of the defendant against the defendant and taking the lecture for treatment of sexual assault, the defendant's age, family environment, etc.

Judgment on the argument of the defendant and defense counsel

Defendant and defense counsel asserted that the Defendant had a state of mental disability at the time of committing the instant crime.

In light of the evidence duly adopted and examined by the court of this case, the defendant is found to have been diagnosed by a psychiatrist with stimulic disorder, stimulic disorder with mental symptoms prior to the crime of this case, but considering the circumstance and contents leading to the crime of this case, the defendant's speech and behavior before and after the crime of this case, etc., it cannot be deemed that the defendant had weak ability and ability to determine the object at the time of each crime of this case. Thus, the above assertion is rejected.

Registration of Personal Information

Where a conviction on the instant crime is finalized, 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 is obligated to submit personal information to the competent authority pursuant to Article 43 of the same Act.

Reasons for sentencing

1. The scope of punishment by law;

From 2 years to 45 years of imprisonment;

2. Scope of recommendations according to the sentencing criteria;

(a) Crimes of violating the Act on the Protection of Children and Juveniles against Sexual Abuse;

The general standard for the crime of indecent act by force (including indecent act by force and force) in the category II (in a case where the exercise of tangible force is considerably weak, in a case where the degree of indecent act is weak, in a case where the degree of indecent act by force is weak, in a case where the degree of indecent act by force is weak, in a case where multiple victims are continuously and repeatedly committed). One year to two years [in a case of indecent act by force by juveniles (including deceptive and force indecent act by force) by force, it shall be included in the category II, but the upper and lower limit of the scope of sentence shall be mitigated to 2/3];

(b) Each indecent act by compulsion;

The general standard for the crime of indecent act by compulsion (subject to the age of 13 or more) on sex crimes shall be the mitigated area (special mitigation factors: cases where the exercise of tangible power is considerably weak), one month to one year by imprisonment.

(c) Scope of recommendations according to the guidelines for handling multiple crimes;

From two to three years of imprisonment (in the case of basic crimes, 1/2 of the upper limit of the range of sentence among other crimes, 1/3 of the upper limit of the range of sentence among other crimes, and 1/3 of the upper limit of the range of sentence of the highest crime; however, the lower limit of the recommended sentence is lower than the lower limit of the statutory applicable sentence, and therefore the lower limit of the applicable sentence is set by law).

3. Determination of sentence: Imprisonment with prison labor for three years and four years under a suspended sentence; and

The defendant's responsibility is heavy in light of the following: (a) the defendant's act of indecent acts against the victims including five juveniles during the short term; (b) the victim suffered considerable sexual humiliation and mental pain at the time; and (c) the victims were punished by the defendant.

However, the fact that the Defendant appears to have committed the instant crime in the state of mental unstable at the time, there is no record of the offense committed against the Defendant, or there is no record of the punishment imposed in excess of the fine, and the degree of indecent act is relatively heavy, and the Defendant recognized and reflected the Defendant’s own crime, etc. In addition, all the sentencing factors indicated in the records and arguments of the instant case, including the Defendant’s age, environment, character and conduct, motive and means of the crime, and circumstances after the crime, etc., are considered as favorable to the Defendant. In addition

Parts of innocence

1. Summary of this part of the facts charged

The Defendant, as described in paragraph 1(b) of the holding, committed an indecent act by force against the victim E (n, 12 years of age) who is under 13 years of age at the time and place described in paragraph 1(a) of the holding, and committed an indecent act by force against the victim F (n, 12 years of age) who is under 13 years of age at the time and place described in paragraph 1(b) of the holding.

2. Determination

A. Since the facts constituting the elements of a crime prosecuted in a criminal trial are subject to the prosecutor’s burden of proof, whether it is subjective or objective, it should be proved that the Defendant committed an indecent act knowing that the victim was under the age of 13, in order to establish a crime of indecent act by compulsion against minors under the age of 13 under Article 7(3) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes.

In addition, where a defendant denies the facts of internal deliberation such as the recognition of certain circumstances, the facts constituting such subjective elements are bound to be proven by the method of proving indirect facts or circumstantial facts which have considerable relation to the inner trial due to the nature of things. In this context, what constitutes indirect facts having considerable relation should be reasonably analyzed and determined based on normal empirical rule, but it cannot be said that the defendant was aware of such facts from the objective fact that the victim is under 13 years of age (see Supreme Court Decision 2012Do7377, Aug. 30, 2012).

B. The evidence duly admitted and investigated by this court reveals the following circumstances. (1) The victim E is a first-year student of Q Qous’s middle school, and the age at the time of the instant crime was 12 years of age and 11 months of age, and was left 13 years of age and 10 days of age, and the victim F also left 1-year student at the victim F as the victim’s first-year student at the time of the instant crime. ② The Defendant was the victim F was the victim F of the first middle school in the middle school and was the victim F of the first year in the middle school, and was unable to hear any answer from the victim E of the first year in the middle school, and was unlikely to know the victims’ age accurately at the time. In light of the above circumstances, the evidence submitted by the prosecutor alone cannot be deemed as having been proven to the extent that the Defendant had not been aware of the fact that the victims at the time of the instant crime was under the age of 13 years of age.

3. Conclusion

This part of the facts charged constitutes a case where there is no proof of a crime, and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the defendant is found guilty of a crime in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, the

The presiding judge, judges, and the Yellow Constitution

Judges Jong-jin

Judges Kim Jae-han