2018Gohap248 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

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

Violation (a minor's indecent act by compulsion under thirteen years of age)

A

Bags (prosecutions) and paintings (public trials)

Attorney Park So-young (National Assembly)

September 5, 2018

A defendant shall be punished by imprisonment for not less than two years and six months.

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

Criminal Facts1)

The defendant is the child of the victim B (n, 12 years of age).

The Defendant, a spouse of C (Grade 3) was unable to care for the above victims in a normal manner due to intellectual disability 1, and was unable to care for them normally, the Defendant used verbal abuse and violence against the victims and other family members from time to time, and the lower age was the victim did not properly resist it, and the Defendant was willing to commit an indecent act against the victim by using it.

Around 20:00 on December 6, 2017, the Defendant laid down a cell phone at the lower room of the Defendant’s office of Mapo-gu Seoul Mapo apartment, and laid down the victim behind the victim who reported his cell phone, spared him, and spared the victim two times the chest of the victim by hand.

Accordingly, the defendant committed indecent act against the victim under 13 years of age who was related to the victim by assault.

Summary of Evidence

1. Partial statement of the defendant;

1. C’s legal statement;

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Each police statement of C;

1. Stenographic records or transcript;

1. An abstract of the resident registration card;

1. Report, case summary, analysis of statements on sexual assault against children and persons with disabilities related to the suspicion of child abuse: 1. Report on occurrence (indecent act by force based on relative relations), investigation report (the victim B interview and the second investigation plan); 1. Application of each video recording CD-related statute;

1. Article applicable to criminal facts;

Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 298 of the Criminal Act (the occupation of indecent acts by force against minors under the age of 13), Article 5(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the occupation

1. Commercial competition;

Punishment provided for in Articles 40 and 50 of the Criminal Act in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a person in relation of relatives)

1. Discretionary mitigation;

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

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 disclosure orders and notification orders:

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 crime of this case is committed against a victim, his/her father, and if the defendant's information is disclosed and notified to the public, additional damage is likely to occur to the victim due to exposure of personal information. The crime of this case alone is difficult to readily conclude that the defendant has a criminal tendency against a large number of unspecified victims; the registration of personal information of the defendant against the defendant and the completion of sexual violence treatment programs can also have the effect of preventing recidivism; and other circumstances, such as the defendant's age, motive and method of the crime; the defendant's motive and method of the crime; the defendant's character, conduct and environment; the degree of disadvantage suffered by the defendant due to his/her order to disclose or notify his/her personal information; and the possible side effects, etc.

1. Exemption from an employment restriction order;

In light of Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse ( January 16, 2018), the proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (in light of the defendant's age, family environment, employment restriction order, the disadvantage of the defendant and the effect of preventing sex crimes that can be achieved thereby, it is judged that there are special circumstances where the defendant should not be restricted from employment) and his/her defense counsel.

1. Summary of the assertion

Although the defendant could have taken part of the victim's chest, it is nothing more than that in the process of being involved with the victim, and there was no intention to commit an indecent act against the defendant.

2. Determination

In full view of the following circumstances acknowledged by the evidence of the judgment, the victim's statement to the effect that the defendant sent the victim's chests twice, and the victim's statement and the evidence in the judgment, comprehensively taking account of such victim's statement and the evidence, can be acknowledged that the defendant committed an indecent act as stated in the facts charged in the judgment of the court.

(a) The credibility of a victim's statement;

1) Relevant legal principles

In determining the credibility of a statement made by an indecent act-related child submitted as evidence in an investigative agency, considering the fact that the child's testimony is strong and is likely to confuse the situation and reality of the questioner, or to be unable to properly recognize the source of memory, the child's age should be examined; how much the child's statement was made after the lapse of the time of the occurrence of the case; how the guardian or investigator who has heard the first damage to the child in the course of the occurrence of the case before the statement was made; whether there was any change in the child memory by providing information that is not a fact-finding under a simple prejudice or inducing a specific answer through repeated newspapers; whether the question was repeated that may be committed by the questioner at the time of the statement; whether the child's statement was affected by the interviewer; whether the child's statement was made without influence; and what kind of statement was made in the court; and also, whether the contents and contents of the statement of the case include information about 200 or more things (see, e.g., Supreme Court Decision 2008Da20620.).

In particular, in determining the credibility of a statement when a minor victim made a statement that he/she had suffered a sex offense, such as rape or indecent act by force, from his/her relatives in the position to protect and supervise him/her, the victim does not clearly reveal the motive or reason to make such statement at the risk of criminal punishment of his/her guardian, despite being aware of the absence of any physical evidence or witness other than his/her own statement, and does not clearly reveal the motive or reason to make a false statement. In addition, if the contents of the statement are factual, concrete, consistent, and are not inconsistent or contradictory in light of the empirical rule, even if the expression method appears to be somewhat unclear or inconsistent with the minor part due to the difference in the expression, the credibility of the statement should not be rejected without any justifiable reason (see, e.g., Supreme Court Decision 2006Do3830, Oct. 26, 2006).

2) Statement of the victim

According to the evidence of the judgment, the victim made the following statements during the investigation process.

A) Around 14:00 on December 8, 2017, the victim responded to the question of whether the Defendant was a counselor F, G institution’s counselors (H and I) affiliated with the E Elementary School Counseling Office (H and I), etc., and the victim respondeded to the question of whether the Defendant was satisfing the victim’s chests, and asked to the answer of the other questions “not being detained......... are difficult to talk.”

나) G기관 소속 상담원 J가 2017. 12, 19. 피해자를 상대로 진행하였던 상담 과정에서, 최근에 피고인이 피해자에게 기분 나쁜 행동을 한 적이 없느냐는 질문에 피해자의 모친 C이 "너 K 본다고 침대 위에서 엎드려 있었을 때" 있었던 일이라고 말하자 피해자는 상담사에게 "그때 아빠가 들어와서 침대에 앉아 엄마를 괴롭히고 갔어요."라고 말하였고, "아빠가 B는 안 괴롭혔어?"라는 질문에 "제가 아빠 해드락을 했어요."라고 진술하였으며, 왜 그러한 행동을 했냐는 질문에 "아빠가 엄마를 괴롭히고 엄마의 가슴을 만졌다"고 진술하였다. 이후 상담원이 피해자에게 당시 상황에 대해 자세히 이야기해 달라고 하자 C이 옆에서 "아빠가 너 가슴 만졌잖아. 뒤에서 안으면서. 엄마가 봤어"라고 하자 피해자가 "아 맞다. 그래서 내가 아빠 해드락을 했구나."라고 말하였다. 이때 피해자가 피고인에게 "아빠 왜 내 가슴 만져? 이거 성추행이야"라고 말하는 것을 C이 들었다고 말하자, 피해자는 "아 맞다. 제가 그때 갈색 옷을 입고 있었는데 아빠가 엄마한테 한 것처럼 저한테도 해서(가슴을 만지는 행위) 내가 아빠한테 어딜 만져 이거 성추행이야 말하고 아빠 목을 졸랐어요. 그 다음에 아빠는 엄마 찌찌를 만지고 나갔어 요."라고 대답하였다. 상담원이 "그럼 아빠가 피해자의 가슴을 만진 게 맞아?"라고 묻자 피해자가 고개를 끄덕였다.

C) On December 27, 2017, the victim visited the L Center directly and made a statement of damage. At the first time, although the victim was not able to see, at the time when the victim was frightened, the victim was frightened, and at the time the victim was frightened, and C said that the victim was frightened, and that the victim was frightened, and that the victim was frightened, and that the victim was frightened. at that time, the victim was frighten, or frighten or right part of the victim. At that time, the victim clearly made a statement about the fact that he was frighten, but the defendant did not clearly made a statement about the fact that he was frightened by the victim. The victim was frighten (the victim was frighten) that "at the victim was frighten," and "at the victim was not frighten."

D) On February 5, 2018, at the victim’s home, the investigating police officer called “the fact was not fright, but the chest was delivered to the victim,” and “(the reason why the L Center did not make any statement at the L Center) was to go away from the time to time, the police officer did not have a gymnasium and go to the drinking only when he did not go to the gymnasium. The police officer wanted to go to go to the gys that he want to go to go to go to the gymnasium. In this context, I would like to go to look at the gymnasium.” The answer was called “the reason why the L Center did not want to move to the school.”

마) 피해자는 2018. 2. 8. L센터에서 진행된 2차 상담 과정에서 '피고인이 작은 방으로 와서 침대에 앉은 다음 C을 먼저 만졌는지 피해자를 먼저 만졌는지는 명확하지는 않지만, C은 만지려다가 C이 흠칫하면서 "아저씨 만지지 말라고 이러면 경찰에 신고한다고 그리고 다시 구치소 들어가고 싶냐"고 말하자 피고인이 멈췄으며, 피해자를 끌어안으려다가 가슴 만지고, 누워서 피해자가 피고인을 때리고 그러다 다시 일어나 피고인이 돌아 갔다. 피고인은 피해자의 옆에서 피해자를 안았고, 만질 때 피고인의 왼 손으로 피해자의 왼쪽(가슴)을 2회 정도 만졌다'는 취지로 진술하였다.

3) Determination of the credibility of the victim's statement

Taking account of the following circumstances revealed by the evidence revealed in the judgment, the victim’s statement that the defendant met the part of the victim’s chest is reliable, and it is difficult to dismiss the credibility without permission on the ground that some of the statements are somewhat unclear or inconsistent. A) On December 19, 2017, the victim made a statement to the effect that the defendant was aware of the victim’s breast, or that the defendant was forced to have the victim’s breast during the course of counseling at the G agency on December 19, 2017. The victim’s statement is relatively detailed and clear as to the fact that the defendant was not forced to attract the victim at the time, the victim’s appraisal and response, and the actions of the defendant and C immediately after the case.

나) 피고인은 경찰 조사단계에서는 피해자의 가슴을 만진 사실을 부인하다가, 검찰 제1회 피의자신문을 받을 때에는 '피고인이 피해자가 있는 작은 방으로 가서 침대 위에 옆으로 누워있는 피해자의 왼쪽 가슴 부분의 옷자락을 멱살 잡듯이 잡았다. 이때 C이 피고인에게 욕설을 하면서 신고하겠다고 말하여, 이에 놀란 피고인이 멱살 잡은 것을 놓고 피해자의 팔을 다시 잡은 다음 안방으로 돌아갔다. 피고인 자신은 가슴을 만지려는 의도는 없었지만 옷을 잡으면서 가슴이 만졌는지 모르겠고, 좀 물컹하긴 했던 것 같은데 그게 가슴인지 속옷인지 모르겠다'라는 취지로 진술하였고(수사기록 333쪽), 이 법정에서도 사건 당일 침대에 옆으로 누워서 핸드폰을 보고 있던 딸의 목과 가슴 중간 부분을 옷 위로 멱살 잡듯이 잡은 사실이 있다고 진술하였는바, 피고인의 진술은 피해자 진술에 일부 부합한다.

C) The Defendant’s wife consistently maintained from the investigative agency to this court, and consistently, the Defendant’s wife stated to the effect that “the Defendant was her and the victim resisted to the Defendant by putting his body on the part of the victim’s chest, putting him her on the lower part of the victim’s chest and her chest,” which conforms with the victim’s statement.

C’s statement appears to have been reversed, such as the statement made by a criminal investigation agency as the defendant was made as if the defendant had the chest of the victim. In this court, there is also a circumstance in which it appears to have been reversed. However, at the time of the defendant’s station, the fact that the defendant committed an act, such as taking flab, etc. of the victim on the day of the case is recognized; C consistently stated from the investigation agency to this court; C appears to have been made on the ground that the defendant committed an indecent act against the victim; C appears to have been made on the ground that the defendant committed an indecent act against the victim; even according to C’s statement at the investigation agency, even according to C’s statement at the investigation agency, the chest was made by the victim by bringing the victim’s chest, which the defendant was laid down in after the victim’s flab, and thus, it appears to the effect that it was not specific how the defendant had the chest of the victim.

In light of the fact that it is difficult to deem C’s statement to the effect that how the Defendant specifically met is difficult, it is difficult to deem C’s statement to be consistent solely on the grounds that the aforementioned circumstances alone alone do not necessarily mean that C’s statement has credibility.

D) The Defendant also made a statement that there is a friendly relation with the victim, and the victim also made a favorable appraisal at the L Center, and the victim seems to be well aware of the fact that the victim may suffer disadvantages, such as criminal punishment, etc. due to the instant case. As such, such victim cannot be deemed to have made a statement unfavorable to the Defendant at the risk of criminal punishment of the Defendant. The Defendant asserts to the effect that the victim appears to have made a statement unfavorable to the Defendant that the victim would not have taken a Handphone. However, considering the relationship between the Defendant and the victim, the victim is not deemed to have made a statement unfavorable to the Defendant solely because the victim is under 12 years of age, who has no particular problem with the language ability or judgment ability.

E) On December 27, 2017, the victim made a statement only to the effect that when he was first consulted at the L Center, the defendant could have her chest in the process of getting the victim informed of the victim. On February 8, 2018, the victim made a statement to the effect that "when the victim makes a statement at the L Center, the defendant was only twice the victim's breast," and that "the defendant was unable to make a statement properly because he was not sufficiently memoryd as to whether the defendant was the victim's breast at the time of the first counseling." There is also a face of doubt about the consistency of the victim's statement. However, it is deemed that the defendant was detained by the statement of the victim in the past, and that the defendant avoided the statement unfavorable to the defendant on the grounds of the memory that the defendant was suffering from economic difficulties, and that part of the victim's statement is unclear, the credibility of the victim's statement cannot be rejected solely on the ground that the victim's statement is unclear.

F) As for the statements made on December 27, 2017 by children and persons with disabilities, the victim expressed his/her opinion that "child shall not evaluate the consistency of his/her statement because he/she has repeatedly stated his/her chest on a case in which he/she had contacted his/her chest, such as MDo, Mazzzy's Haak, etc., and because he/she did not clearly and specifically describe it in the order of time (123 pages of investigation record). However, as for the statements made on February 8, 2018 by the victim, "the victim's statement" was presented in a broad time situation, such as a detailed description of the act of the defendant and the victim, and the mutual action of the defendant and the victim has been reproduced, the victim's opinion was presented to the effect that "the statements made on the basis of experience in the core acts and circumstances have been described in a consistent manner," and that "the statement made on February 8, 2018."

B. Judgment on the defendant's assertion

The defendant asserts that the victim could have broken down his chest in the process of facing the victim, and that there was no intention to commit an indecent act.

The term "indecent act by force" means an act that causes a sense of sexual shame or aversion to the general public and is contrary to good sexual morality, and it does not require any subjective motive or purpose to stimulate and cultivate sexual humiliation as necessary for the establishment of the crime of indecent act by force (see, e.g., Supreme Court Decision 2013Do5856, Sept. 26, 2013). At the time of the crime of this case, the victim was physically and mentally sensitive to women under 12 years of age, and the defendant's act was determined at Seoul High Court on December 6, 2016 that "the defendant was 1's act of causing sexual humiliation or aversion to the general public, and thus, it is difficult to view that the defendant was 1's act of causing sexual humiliation to the victim on the floor of the victim, and that the defendant was 1's act of using his chest and her chest as an indecent act by force during the period of 20 years of punishment of the victim's chest, etc.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to fifteen years;

2. Determination of sentence;

On December 6, 2016, the Defendant was sentenced by the Seoul High Court to a suspended sentence of three years for a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (an indecent act, such as a minor under the age of 13), etc., and on December 14, 2016, the above judgment became final and conclusive on December 14, 2016. The Defendant committed the instant crime without being able to do so even though he/she is still under the suspended sentence for the same crime. The Defendant requires a strict

On the other hand, the degree of type used by the defendant in the course of the crime of this case is relatively minor, and in the case of this case, if the defendant is sentenced to imprisonment with prison labor, the above sentence that has been invalidated and suspended due to the above previous sentence should also be returned together with the above sentence. In addition, all the sentencing conditions specified in the records and arguments, including the defendant's age, character and behavior, intelligence, environment, and circumstances before and after the crime, shall be determined as ordered.

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

The presiding judge, the Gimology judge

Judges Kim Gin-young

Judges, Senior Jins

1) The Defendant stated in the Prosecutorial Office that the victim was forced to take advantage of the victim’s intrusion, and the victim was aware of the victim’s side from the Defendant’s side.

A crime that does not affect the exercise of the defendant's right to defense on the basis of facts acknowledged by the evidence of the judgment, including the facts stated.

To the above extent, the facts charged were partially revised and recognized.

2) 9 pages of stenographic records

(iii) 2,6 pages of the examination of the witness C;