(영문) 서울중앙지방법원 2018.9.21. 선고 2018고합621 판결

The defendant shall be ordered to complete a sexual assault treatment program for 80 hours. The defendant shall be ordered to place employment restrictions on children and juveniles-related institutions, etc. for five years.

Reasons

Criminal facts

On November 201, the defendant became aware of the victim C (the age of 12 at the time) who is a child or juvenile through the Internet B car page.

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

A. On November 201, the Defendant committed an act of similarity against the victim, who is a child or juvenile, by force, by forcing him/her to go off the victim's will and panty, and inserting his/her fingers into the victim's hand, even though the victim refuses to do so, in the vicinity of subway No. 7 Station E Station in Dongjak-gu Seoul Metropolitan Government, in spite of his/her refusal, in spite of his/her refusal to do so.

B. Around August 2016 to September 9, 2016, the Defendant: (a) committed an act of similarity against a child or juvenile victim by force, such as putting the victim into the Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesenger’s Mesen, and she tried to take the victim into the toilet into the toilet.

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

A. The Defendant sent a letter to the victim on the same date and time as paragraph 1(a) and at the same place as that of paragraph 1(a) and demanded the victim to keep the victim’s balone photo by sending it to the victim with a four-dimensional photograph affixed. The Defendant sent it by affixing a four-dimensional photo. The Defendant demanded the victim to keep the victim’s balone photo transmitted and keep the photo.”

On December 2, 2011, the Defendant, as seen above, committed sexual intercourse with the victim, who is a child or juvenile, by force, such as: (a) the victim was frightened; (b) the victim was frightened from the subway 7 subway lines located in Dongjak-gu Seoul Metropolitan Government D; and (c) the victim was frightened from the victim’s rocks and panty in the toilets of nearby buildings; and (d) the victim was frighten; (b) the victim’s sexual organ was demanded to be immediately frighten by entering the victim; and (c) putting the victim’s hair into the victim’s hair and s

B. On December 201, 201, the Defendant: (a) sent the victim’s letter/mail to the police officer, “I will send the victim one time once every three to four days after putting his/her pentle and affixing his/her photograph”; (b) did not send his/her photograph to the victim; (c) was frighted as if he/she would spread the victim’s body photo; and (d) in the subway No. 7 E Station near the subway No. 7 Station located in Dongjak-gu Seoul Metropolitan Government, the Defendant: (a) caused the victim to be off his/her clothes to the victim; and (b) had sexual intercourse with the victim, who is a child or juvenile, by force, by inserting the victim’s sound part, inserting his/her finger,

C. Around December 2012, the Defendant: (a) committed sexual intercourse with the victim, who is a child or juvenile, by force, by inserting the victim’s sexual organ into the part of the victim’s sexual organ in the vicinity of subway 7 subway lines located in Dongjak-gu Seoul Metropolitan Government D; (b) inserting the victim’s sexual organ into the part of the victim’s sexual organ from the toilets of neighboring buildings; and (c) inserting the victim as soon as possible.

D. From August 2016 to September 2016, the Defendant, on the ground that he/she had the victim’s b body photo, caused the victim to have his/her her b body photo as his/her son, and had the victim sexual intercourse with the victim, who is a child or juvenile, by force, on the ground that he/she exceeded the victim’s will and panty, and was in the room where the victim’s sexual hair hair is sleeped at the home of the Defendant’s head of Suwon-gu Suwon-gu, Suwon-gu, Suwon-gu, Gyeonggi-do.

Summary of Evidence

1. Defendant's legal statement;

1. Statement to C by the police;

1. The police seizure record and the list of seizure;

1. Materials to make guidance or to extract suspect L messages;

Application of Statutes

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

Article 7(5) and 7(2)2 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sep. 15, 201); Article 7(5) and 7(2)2 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sep. 15, 201); Article 7(5) and (1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sep. 15, 201); Article 7(2)2 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Dec. 12, 201); Article 7(5) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11510, Dec. 27, 2012); Article 15(2) of the former Act on the Protection of Children and Juveniles.

1. Aggravation for concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act and the punishment shall be aggravated for concurrent crimes with punishment provided for in the Act on the Protection of Children and Juveniles against Sexual Abuse on or around August 9, 2016, with the largest penalty.

1. Order to complete programs;

○ Facts constituting the crime No. 1-A, 2-A, b-C: Article 4 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 11572, Dec. 18, 2012); Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 21(2)-B and 2-D of the facts constituting the crime as indicated in the judgment: the main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Jan. 16, 2018); 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)

1. Exemption from an order for disclosure and notification;

Article 38(1) proviso, Article 38-2(1) proviso, Article 1 proviso and Article 4 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012); Article 1 proviso and Article 4 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 10260, Apr. 15, 201); Articles 1 and 4 of the former Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 11047, Sept. 15, 201)

The crime No. 1-b and No. 2-D: 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 defendant has no record of being punished for the same sex offense, and the crime of this case alone is likely to readily conclude that the defendant has a criminal tendency toward an unspecified number of victims. The defendant's personal information is registered, an order to complete a sexual assault treatment program, and an employment restriction order alone seems to have an effect to prevent recidivism. In addition, taking into account the defendant's age, family relation, social relationship, the expected profit and preventive effect of an order to disclose or notify the defendant's personal information in the pleading of this case, and the disadvantages and side effects of the order, it is reasonable to deem that there are special circumstances that the defendant's personal information should not be disclosed or notified).

1. Confiscation;

1. The scope of applicable sentences under law: Imprisonment with prison labor for 5 years from 45 years;

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

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

[Determination of Punishment] General Criteria for Sexual Rape 2 types of rapes (a person aged 13 or older) (a special rapes, such as Rape by Relatives-related Relations)

*The descriptive criteria: Rape similar to juvenile rapes (including deceptive schemes, sexual intercourses and similar sexual intercourses) are included in two categories.

[Special Aggravationd Persons] Aggravationd: Aggravationd area of increase of sexual humiliations (the scope of recommendations) by dynamic, dynamic, or extreme sexual humiliations; 6 years to 9 years of imprisonment;

(b) Final recommending punishment according to the standards for handling multiple crimes: Imprisonment with prison labor for up to six years from 16 years to 16 months (the upper limit of basic crimes + 1/2 of the upper limit of secondary crimes + 1/3 of the upper limit of third crimes);

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and consequence of the crime, degree of participation, and circumstances after the crime, etc., the punishment shall be determined as ordered by the order beyond the lower limit of the sentencing guidelines, comprehensively taking into account various sentencing factors revealed in the arguments in this case.

In the case of this case, each crime of this case was committed by a defendant, who is a child or juvenile, by force or sexual intercourse over several times against the victim under the age of 12, who is a child or juvenile, and repeats the same crime again after about four years, in view of the frequency of and the details, method, etc. of the crime. The victim appears to have caused a large mental impulse and sexual humiliation due to each of the crimes of this case, and the victim suffered difficulties in forming a negative and correct sexual values by being subjected to each of the crimes of this case at the time when the juvenile was formed and sexual development was conducted, and suffered considerable mental suffering up to now. The victim is punished against the defendant.

A favorable circumstances for ○○: The Defendant acknowledges and reflects his mistake. The Defendant is a first offense without any previous conviction. A family member of the Defendant has an edification against the Defendant. Where a conviction becomes final and conclusive on the facts constituting a sex offense subject to registration, the Defendant is a person subject to registration of personal information in accordance with 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 in accordance with Article 43 of the same Act.