2020No48 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, Injury by Rape, etc.), violation of the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims (Rape, etc.) and violation of the Act on the Control of Narcotics, etc.

200No. 7 (Joint Attachment Orders)

A

Defendant and the respondent for attachment order

The old-style house (request for prosecution and attachment order), and the previous week (public trial)

Attorney Ha Sung-han

Incheon District Court Decision 2019Gohap712, 2019NaMa555 (Joint), 2019 Reporting 50 (Consolidated) Decided December 11, 2019

may 22, 2020

The appeal filed by the defendant and the respondent against the attachment order shall be dismissed.

1. Scope of the judgment of this court;

The court below dismissed the prosecutor's request for probation order, and only the defendant and the person subject to the request for attachment order (hereinafter referred to as the "defendant") filed an appeal. Therefore, the probation order claim is not a benefit of appeal, and therefore, it is excluded from the scope of the judgment of this court notwithstanding the provisions of Articles 21-8 and 9 (8) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, as there

2. Summary of grounds for appeal;

A. Part of the defendant's case

The sentence of the court below (the imprisonment of 4 years and 6 months for the crime No. 1, the imprisonment of 11 years and 5 years for the crime No. 2 in the holding, and the imprisonment of 8 months for the crime No. 3 in the holding) is too unreasonable.

B. The part regarding the case of attachment order

Since there is no risk of recidivism by the defendant, the attachment order of an electronic tracking device of the court below is inappropriate.

3. Determination

A. As to the part on the defendant's case

1) As to the assertion of unreasonable sentencing

In this case, the Defendant recognized the entire crime of this case in this court, and shows an attitude of breaking in depth. The Defendant has no record of punishment for a sex offense other than the crime of this case. The Defendant’s family form is not good, and the Defendant’s health condition seems not good. The offense of violation of the Act on the Punishment, etc. of Sexual Crimes and the Act on Special Cases concerning the Punishment, etc. of Victims of Sexual Crimes (Rape, etc.) and the Punishment, etc. of Sexual Crimes (Rape, etc.) is in relation to each of the crimes of violation of the Act on the Punishment, etc. of Sexual Crimes (Rape, etc.) and the latter part of Article 37 of the Criminal Act, and simultaneously with the offense of violation of the Act

However, the Defendant committed the crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. against Victims C, who are children and juveniles, and committed the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) against Victims E, who are under 13 years of age. All of the above crimes committed against victims of age vulnerable to the crime, committed a crime by entering a married residence, and the victims committed a crime, and the means, method, etc. of the crime are very interview and plebling, and the Defendant committed each of the above crimes during the period of repeated crime. In light of the fact that each of the above crimes committed each of the above crimes, the nature and circumstances seems to be extremely bad. The victims were unable to use the crime from the victims, and the victims did not recover from the damage. Moreover, the Defendant committed each of the instant crimes without any reflect on the past history of punishment on several occasions by the Act on the Control of Narcotics, etc., and the narcotics committed each of the instant crimes during the suspension of execution after the sentence becomes final and conclusive.

In full view of such circumstances and other factors of sentencing as the Defendant’s age, character and conduct, environment, motive, means and method of committing the crime, and circumstances after committing the crime, it cannot be deemed that the sentence imposed by the lower court is too unreasonable. This part of the Defendant’s assertion is without merit.

2) As to the unjust assertion of disclosure and notification order

The Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and the Act on the Protection of Children and Juveniles against Sexual Abuse shall, in principle, disclose and notify the personal information of all persons who have committed sexual crimes in order to defend our society from sexual crimes, and shall be exempted from such disclosure only in cases where there are special circumstances that may not be exceptionally made. Here, whether such disclosure of personal information constitutes "where there are special circumstances that may not be disclosed" such as the defendant's age, occupation, risk of recidivism, etc. The issue of whether such disclosure of personal information constitutes "where there are special circumstances that may not be disclosed" should be determined by comprehensively taking into account the defendant's age, occupation, characteristics of the offender, such as the type, motive, process of the crime, consequence, seriousness of the crime, etc., characteristics of the disclosure or notification order, degree of disadvantage and anticipated side effects to be achieved by the defendant due to the disclosure or notification order, effects on the prevention of sexual crimes subject to registration, effects on the protection of victims of sexual crimes subject to registration, etc. (see, e.g.

As seen above, the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) in light of the background, means, methods, etc. of the crime of this case is very bad and considerable interview and scarcitys with the applicable method of the crime, and as seen below, it is recognized that the defendant is in danger of re-offending as follows, and that it is necessary to inform the general public of such danger, and there is any need to inform the general public of such danger, and the effect of the prevention of sexual crimes that may be achieved by disclosure or notification order, etc., it is difficult to deem that there is any special circumstance that the disclosure or notification of the personal information of the defendant is prohibited. Accordingly, the defendant'

B. As to the case regarding the attachment order claim

The court below sentenced the defendant to an electronic tracking device, considering the following circumstances acknowledged by each evidence of the judgment and the written investigation before the request, namely, ① the defendant committed a sexual crime against the victim C, who is a child or juvenile, in violation of the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims of the Sexual Crimes (Rape, etc.) and the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) against the victim E who is under the age of 13; ② the risk assessment degree of sexual offender in Korea (KSAS) against the defendant falls under the level of "high risk of recidivism of sex crime" with the total point of 19; ③ the attitude of the defendant, etc., who was sent to the defendant during the investigation before the request, and other circumstances leading to each sexual crime in the judgment of the defendant; ③ the defendant's age, physical condition, family relation, awareness and attitude of sex; and in light of the criminal history and method of each of the above crimes, the defendant committed a sexual crime against a person under the age of 19 years.

In light of the records, considering that the defendant has no record of punishment for the same kind of crime except each of the sex offenses in this case, or that the defendant would not repeat the crime again, the judgment of the court below that issued an attachment order of an electronic tracking device to the defendant is just and its attachment period is not unfair as it is not reasonable. The defendant's assertion on this part is without merit.

4. Conclusion

The defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

The Constitution of the presiding judge and the senior judge

Judges Kim Gon-won

Judges shall be beneficiaries

1) The crime against the victim E constitutes a sexual crime against a person under the age of 19, and thus, the lower limit of attachment period under the proviso of Article 9(1) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders is twice the lower limit of attachment period (10 years) under Article 9(1)1 of the same Act.