2018Gohap460 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by Compulsion)

A

Lee Young-young (Public Prosecution), Choi Na-young (Public Trial)

Attorney Kim Young-soo (Korean)

February 20, 2019

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be ordered to provide community service for 120 hours and take lectures for the treatment of sexual assault for 40 hours.

Punishment of the crime

The defendant worked as a criminal in the C Teaching Institute in Daegu Suwon-gu B, and the victim D (V, 15 years old) was the original student of the above C Teaching Institute.

1. On November 13, 2017, the Defendant: (a) around 22:30 on November 13, 2017, the Defendant: (b) on the vehicle of Lone Star Driving Institute that was parked on the front road in the Daegu Suwon-gu E, and said, “The Defendant would be adequate for the Defendant to pay back the knee of the Defendant; and (c) it would be too good for the Defendant; and (d) the Defendant would be able to pay back the kne of the knee of the Defendant; and (d) the Defendant was able to pay back the knee of the knee of the Victim.

2. 피고인은 2017. 12. 말 22:30경 위 F여고 앞 도로에 주차된 스타렉스 학원 차량 내에서 피해자가 피고인의 무릎을 베고 눕자 피해자의 상의 속으로 손을 넣어 피해자의 배를 만지려고 하여 피해자가 피고인의 손을 뿌리치자 "니 배 모찌떡 같다"라고 말하며 손으로 피해자의 가슴 아래쪽 배 부위를 주무르듯이 만졌다. 이로써 피고인은 2회에 걸쳐 아동·청소년인 피해자를 강제로 추행하였다.

Summary of Evidence

1. Defendant's legal statement;

1. Stenographic records;

1. Application of Acts and subordinate statutes to a report on investigation (the letters sent by the mother of the defendant to the mother of the victim);

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, Article 18 and Article 34(2)7 of the Act on the Protection of Children and Juveniles against Sexual Abuse (elective Selection)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and proviso of Article 42 of the Criminal Act

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 provide community service and complete programs;

The main sentence of Article 21(2) and (4) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Orders to disclose and notify and exemption from employment restrictions orders;

In light of the following: (a) the proviso to Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; (b) the proviso to Article 50(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018); and (c) Article 56(1) proviso of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018); (c) the registration of personal information of the Defendant against the Defendant and the participation in the sexual assault treatment course can be deemed to have the effect of preventing recidivism; and (d) the Defendant’s age, family relationship, social interest, and the effect of preventing sexual crimes, etc. are relatively less than the disadvantages and anticipated side effects to be borne by the Defendant due to the disclosure, notification, and employment restriction order, and there is no special circumstance to disclose personal information of the Defendant or order to restrict employment to children, juveniles, etc.

Where a conviction against a defendant becomes final and conclusive, 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.

1. The legal applicable range of sentencing

From June to 25 years of imprisonment;

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;

【Determination of Punishment】

-type 2 of indecent act by compulsion on the basis of the general standards of sex crime groups (subject to older than 13 years of age);

[Special Aggravations] - Aggravations: Crimes committed by persons obligated to report or persons engaged in protective facilities, etc.

【Determination and Scope of Recommendations】

· Aggravated area, 2 years to 8 months from 4 years to 4 years (in case of indecent act by juveniles, 4 years to 7 years from 2/3 years, which are the scope of sentence in the aggravated area of category 2).

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

-two years of imprisonment to seven years of age;

3. According to the decision of sentence, the crime of this case is a case in which the defendant, who is in the position to guide the victim as a Taekwondo criminal, is under the influence of the victim's entrance or by inserting his hand into the knife, and commits an indecent act against the victim. In light of the content and frequency of the crime, the victim's age, relationship with the victim, etc., the crime of this case is not good, and the victim seems to have suffered considerable sexual humiliation and mental impulse, and the victim seems to have suffered negative impacts on the formation of sexual identity and values in the course of growth, and the victim's failure to take advantage of the fact that the crime of this case was committed, it is necessary to strictly punish the defendant.

However, there are favorable circumstances such as the fact that the defendant led to the confession of all the crimes of this case and reflects the mistake in depth, the fact that considerable effort was made for the recovery of damage, the degree of force exercised by the victim, and the fact that the defendant's intent to punish the defendant is not strong, the first crime without any criminal power, and the fact that the defendant's consciousness wanted the defendant's preference.

In addition, the punishment as ordered shall be determined by comprehensively taking into account the following factors, such as the defendant's age, character and conduct, environment, family relationship, circumstances after the crime and circumstances after the crime.

The presiding judge, full-time judge

Judges or private citizens;

Judges Shin Dong-ho