206Gohap244 Indecent act by compulsion, punishment of sexual crimes, protection of victims, etc.

Violation of the Act (Indecent Acts in the Course of Duties, etc.), Corruption

Action

○○, Public Officials

000

Attorney ○○○

August 11, 2006

A defendant shall be punished by imprisonment with prison labor for not less than five years and suspension of qualifications for three years.

155 days of detention before this judgment is rendered shall be included in the above sentence.

Criminal facts

From July 25, 2005, the Defendant is a person engaged in the examination of classification of convicted prisoners and the review of parole against female prisoners who work for the aforementioned Seoul detention center as a separate inspector belonging to the Seoul detention center. If the Defendant conducts an examination of classification of female prisoners, even if he commits an indecent act against other prison officers, it is difficult for them to understand that other female prisoners are placed in the second grade classification examination room, and female prisoners who undergo an examination to be disadvantaged by being treated in the detention center or parole according to the result of the examination of classification are unlikely to resist by taking advantage of the superior position of correctional officers, such as sexual indecent act, etc. against female prisoners, and at the same time, he/she takes advantage of the above position of the victim's chest to put them into the above position, and he/she continues to put them into the above position of the victim's chest at around 00, 18 - 18 - 1, 1, and 1, 200 after leaving the victim's chest to the above position of the victim.

2. In the above detention house classification review room on the same day, the above victim 2 who is female prisoner was classified and examined. The above victim asked private questions, such as "I am out of prison," "I am out of prison," and "I am out of school," and followed the victim by "I am out of school," and used the above victim's position for about five minutes, such as forcing the above victim to am out of school, and talking with the above victim's chest by hand. On March 13:00, the above Seoul detention house classification review was conducted against the victim 3 who is female prisoner at the above Seoul detention house classification review room on the same day. At the same time, while the examination was conducted, I am out of the above victim's shoulder as son, let the above victim take care of the above victim's chest, let the above victim take care of the victim's chest, and let the above victim am out of school, let the above victim take care of his son's son, and do indecent act at the same time during three minutes.

4. The above Seoul detention center classification review was conducted with respect to the victim 4 who is a female prisoner in the above Seoul detention center classification review around 00, and during the review, the above victim made a cruel act using his position for about 5 minutes, such as putting the victim's grandchildren up, raising knife with his knife and knife with knife with knife and knife with knife with knife, and knife the above victim's chest and knife with knife with knife with knife.

5. The same day: 15th day of the above Seoul detention center classification review was conducted against the above female inmates 5. The above victim's son's face "I am bad," and "I am bad, I am am son's face," and I am am son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's 6th day of the above 7th day.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness ○○○, Kim○, Park○, Lee ○○, Lee○○, Lee○○, Kim○, Kim○, Kim○, the highest○○, and box, and ○○○;

1. Each prosecutor's protocol of partial examination of the accused;

1. Each prosecutor’s protocol on the Park○-○, Park○-○, Kim○-○, Lee○-○, Kim○-○, Kim○-○, Lee○-○, and Kim○-○;

1. The application of the relevant Acts and subordinate statutes to the head of a security division, the head of a security division, the consultation with the convicted prisoner's mother (o ○○), the card, etc. of a public official, the building floor plan (classified review and division), the list of female classification examiners, the list of female inmates classified and examined by ○○○○ after August of the 000, the list of classification examiners, the on-site visit report, the statement hearing report (33 female inmates in Seoul detention center), the statement statement, medical opinion, and the medical record book;

1. Article applicable to criminal facts;

Articles 301 and 298 of the Criminal Act (the point of injury caused by indecent act by compulsion), Article 125 of the Criminal Act (the point of toxicly Cruel Act), and Article 11(2) of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (the point of indecent act by force on duty)

1. Commercial concurrence and the selection of a punishment;

Articles 40 and 50 of the Criminal Act [1.......... The punishment for the crime of cruel treatment against the victim 1, 3 and 4, each crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (Indecent act in occupational force, etc.)] shall be imposed, ② the punishment for the crime of cruel treatment against the victim 7, and the punishment for the crime of cruel treatment against the victim 7, and the crime of bodily injury by indecent act by force, and the punishment for the crime of causing serious indecent act by force shall be imposed concurrently]

1. Selection of punishment;

A fixed term of punishment on the injury resulting from indecent act by compulsion;

1. Aggravation for concurrent crimes;

Article 37 (Concurrent Crimes prescribed by the former part of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Crimes in Punishment of Indecent Act by Indecent Act by Force on the Judgment with the most severe Punishment)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

Judgment on the Defendant and defense counsel's argument

1. As to the crimes of Articles 1 through 6 (as to the victims excluding the victims 7);

A. Summary of the assertion

The defendant and his defense counsel stated that the defendant classified and examined the victim 1 to 6 at the time of the above charges, but that there was no indecent act or harsh act as stated in the facts charged in the process.

B. Determination

(1) The above victims have testified in this Court as follows with respect to each of the facts charged.

① 피해자 1 : “ 피고인으로부터 분류심사를 받던 중 피고인이 갑자기 증인의 옆으로 의자를 옮겨 앉은 후 증인을 끌어안은 상태에서 옷 안으로 손을 넣어 엉덩이와 가슴을 수회 만졌다. 그 과정에서 피고인은 ‘ 말을 듣지 않으면 수갑을 채워 독방에 집어넣겠다 ' 라고 협박하기도 하였고, 분류심사 시간이 길어지자 분류심사실 밖에 있던 다른 직원에게 여기 상담이 길어질 것 같으니 다른 재소자를 잡고 개인상담 좀 해주고 있어라 ' 라고 말하기도 하였다. 당시 피고인으로부터 성추행을 당한 시간은 30분 정도로 기억되고, 그 과정에서 피고인은 증인에게 바지를 벗으라고 말하기도 하였고 실제로 증인을 책상 위에 엎드리게 한 후 바지를 벗기려고 시도하기도 하였다. ” ② 피해자 2 : “ 피고인으로부터 분류심사를 받던 중 피고인이 출소하면 나가서 만나자 ’ 라는 등의 사적인 질문을 하였고, 면담이 마무리될 무렵 갑자기 증인 옆으로 다가와 ' 안아나 보자 ' 라고 하면서 증인을 강제로 껴안았으며, 손으로 증인의 엉덩이를 수회 만지면서 키스를 하려고 하였다. 그 과정에서 피고인의 손이 증인의 가슴에 와 닿기도 하였다. 이후 피고인은 2006. 12. 중순경 다시 증인을 불러 ' 보고 싶어서 불렀다, 한번만 안아보자 ', ' 나가서 만나줘야 돼 ' 라고 치근대기도 하였다. ” ③ 피해자 3 : “ 분류심사를 하던 중 피고인이 갑자기 의자에서 일어나 살짝 열린 출입문을 닫고 증인의 뒤로 다가와 오른손을 증인의 어깨에 올렸고, 양손으로 증인의 가슴을 주무르듯이 만지기 시작하였다. 이에 증인이 항의하였으나 피고인은 계속하여 가슴과 어깨, 배 등을 만졌고, 증인이 언성을 높이려고 하자 엄지손가락을 입에 대면서' 쉿, 쉿, 조용히 해, 이제 안 만질게, 아무한테도 말하지 마 ' 라고 말하였다. ” ④ 피해자 4 : “ 분류심사가 끝날 무렵 피고인이 증인에게 ' 왜 우냐, 내가 악수하자고 안 해서 우냐 ' 라고 말하면서 증인의 손을 만지작거렸고, 증인에게 다가와 거의 안은 상태에서 옷 안으로 손을 넣어 가슴을 주무르듯이 만지고, 한쪽 손으로 증인의 엉덩이를 주무르듯이 만졌다. 당시 피고인은 증인에게 ' 아무에게도 말하지 마라, 내가 돌봐 줄게 ' 라고 말하기도 하였다. ” ⑤ 피해자 5 : “ 당시 피고인은 분류심사를 시작하면서 ' 악수 한번 합시다 ' 라고 말하고는 증인의 손을 잡고 계속 만지작거렸고, 증인이 피고인의 손을 뿌리치자 분류심사 파일의 급수를 가리키면서 ‘ 점수를 잘 받아야 한다, 이거 알지 ’ 라고 말하기도 하였다. 이후 계속 면담을 하는 과정에서 피고인은 갑자기 일어나 증인의 옆으로 다가와 증인을 껴안았고, 오른손으로 증인의 왼쪽 엉덩이를 주무르듯이 만졌다. 이후 피고인은 증인에게 손가락으로 입을 다물라는 시늉과 함께 둘만의 비밀이다 ' 라고 말하면서 분류심사 파일의 급수 칸을 손가락으로 몇 번 두드리기도 하였다 ” ⑥ 피해자 6 : “ 분류심사가 마무리될 무렵 피고인이 ' 일어나 보시겠습니까 ' 라고 말하면서 증인에게 다가오더니 자리에서 일어난 증인을 두 손으로 감싸 안고, 오른손을 증인의 옷 안으로 집어넣어 가슴을 주무르듯이 만지고, 키스를 하려고 하다가 못하자 입술을 증인의 볼에 비볐다. 이후 피고인은 계속하여 하체를 증인의 몸에 밀착시킨 채 증인의 음부 쪽으로 손을 내리려고 하였다. 이에 증인이 놀라 출입문을 잡아당겨 문을 열자 그제야 뒤로 물러섰다. 그 과정에서 피고인은 증인에게 ' 잘 봐주겠다 ' 라는 취지의 말을 하기도 하였다 .

(2) On the other hand, in the case of the victims 1 among the victims, the defense counsel made a consistent statement from the investigative agency to the court on the form, method, etc. of indecent act committed by the defendant. In addition, in this court, the time when the victim was committed in the classification review room with the defendant at the time of this court, it stated that the time when the victim was committed by the defendant was about 20 minutes, and that the time when the sexual indecent act was committed by the defendant was about 30 minutes, the above victim's height was about 169cm in height, 169cm in body, 71km in body was 190cm in body, and the body was 60km in body. In light of the circumstances surrounding the classification review room at the time, the above victim's statement that the defendant tried to rape the above victim by making the victim 1 kid down on the face of the above victim at the classification review room cannot be easily understood, it is argued that there is no credibility in the above victim's statement.

However, according to the records, even if the above victim made a statement contrary to his awareness as to the time when he was involved in an indecent act by the defendant and his body weight, etc., it seems to be due to the lack of basic repair sense, and the above victim has consistently made a statement from an investigative agency to this court in favor of the fact that he committed an indecent act by the defendant in the same manner as the facts charged, it is difficult to readily conclude that the victim's statement was credibility in the whole statement of the above victim merely due to such reasons, even if the victim made a statement somewhat exaggerated about the situation at the time of the above case and is not consistent with the degree of indecent act according to the stage of statement or statement. Rather, in light of the various circumstances seen below, it is difficult to view that each of the above victims' statements including the victim 1 is not a person who did not directly experience, and it is extremely difficult to view that the victim's statement was an indecent act before and after the victim's statement to the extent that the victim's initial testimony and the defendant's punishment were not known.

(4) Sub-decisions

Therefore, this part of the evidence, including the above victims' statements, based on each of the above evidences.

Since each facts charged are fully convicted, the above argument by the defendant and the defense counsel cannot be accepted.

2. Criminal facts as to paragraph (7) of this Article (as to the part concerning victim 7);

A. The summary of the argument (1) states that at the time of the examination of classification with the victim 7 at the end of March, the defendant may parole the victim 7 at the time of the examination of classification, and that "whether the defendant can be allowed to parole once again at the end of March" is stated as "I am I am I am I am I am I am." While the above victim's hand is less even I am I am, the above victim did not commit an indecent act on the part of the victim, such as her chest and am I am or k k am, etc.

(2) At the time of the examination of classification by the Defendant, the above victim was in a situation where he could have sound or classified the above victim at any time, and even according to the statement by the above victim, the defendant suspended and continued classification of the indecent act committed by the above victim. Thus, it cannot be deemed that the above victim committed an indecent act by force. (3) Since the above victim had a serious mental problem even before the above case, it cannot be readily concluded that the above victim was caused by the Defendant’s indecent act, and the defendant could not have predicted that such an indecent act was committed by the above victim.

B. Determination

(1) Whether the defendant committed an indecent act against the above victim

살피건대, 위 피해자는 사망 ( 2006. 3. 11. ) 하기 전인 2006. 2. 8. 수사기관에서 “ 당시 분류심사실에 들어가니 피고인이 문을 닫으라고 해서 출입문을 닫고 의자에 앉았는데 피고인은 심사를 하면서 피해자에게 ' 남편과 왜 별거중이냐 ? 이렇게 예쁜데 남편이 왜 바람을 피우는지 모르겠다 ’, ‘ 가석방으로 출소하면 나를 만나 줄 수 있느냐 ? 내가 작성하는 서류가 제일 중요하고 분류과에서 작성하는 서류를 잘 작성하여 올리면 가석방을 빨리 받을 수 있다 ' 라고 말하였다. 그리고는 손가락으로 조용히 하라는 시늉을 하면서 자리에서 일어나 책상 옆으로 돌아와 앉아있던 피해자의 옷소매를 당겨 일으켜 세우더니 옆에서 껴안으면서 왼쪽 손으로 피해자의 왼쪽 가슴을 만졌고, 오른손으로는 목 부위를 껴안았다가 엉덩이 부위를 만졌다. 이에 피해자가 ' 왜 이래요 ' 라고 하며 밀치자 다시 다가와 힘으로 피해자를 뒤에서 끌어안으면서 다시 가슴을 만졌다 .

In addition, the defendant put his hand into the clothes, and called her k's face on the left side of the victim, and called her k's face only once, and her k's k'. The victim knew that her k's k's k's face after her k's k's k's k', her k', and her k's k' k' k', her k', and her k's k' k', her k', and the k's k's k' continued to open the entrance to 1/3 degree and her k's k'. After that, the defendant again called 's k's k', "a k', which has a face to kn't k' on the part of the victim's face, the defendant stated that the above k's k's statement is not a direct experience but a false statement in that there is no other specific reason for the victim's credibility.

The above victim's statement and the evidence revealed as follows. The above victim was aware that ○○, a female correctional officer, was living together with her chest and her knee at the time of the classification review by the defendant, after the above victim was examined by the defendant, and consulted her knee and knee at her knee. The above ○○ demanded that the defendant be knee and knee at her knee in the division division. Since then, the victim of the above suicide appears to have suffered significant mental suffering from the defendant's act before the suicide, such as her knee and knee, stating that the above knee will appear before the suicide was committed. Considering that the defendant's indecent act against the above victim was very similar to the indecent act against other victims of this case and the circumstances before and after the crime, the above knee and knee can be sufficiently acknowledged as an indecent act by compulsion by the defendant as stated in this part of the charges at the time.

The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by resorting to violence or intimidation, but also the case where the act of assault itself is deemed an indecent act. In this case, as long as the assault does not necessarily require that the degree of suppressing the other party’s intent is limited, and the force is exercised against the other party’s will, it shall be regardless of its force (see Supreme Court Decision 2001Do2417, Apr. 26, 2002).

Therefore, as seen above, if the defendant, while being classified and examined, caused the above victim, and her chest and her chest were seled, and her chest and her face were seld even after the above victim was pushed, then the defendant's act constitutes the exercise of force against the above victim's will. Thus, if it is obvious that the above victim's sexual freedom was infringed, the defendant's act should be deemed as an indecent act. (3) In the crime of indecent act by compulsion as to whether the result of the above victim's injury was caused by the defendant's act, it does not necessarily mean that the victim's physical integrity or physiological function was caused, but it includes not only physical function but also mental function (see Supreme Court Decision 98Do3732 delivered on January 26, 199).

In light of the above evidence, the victim's above physical harm caused by this case's act of 1st century and 2nd 1st 2nd 3rd 1st 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 3rd 2nd 2nd 2nd 3rd 2nd 2006nd 1st 2006 second 2nd 1st 2006 second 2nd 3rd 2nd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 2nd 3rd 2nd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 3rd 2nd 2nd 2nd 3rd 2nd 2nd 3nd 2nd 3nd 2nd 3nd 2nd 2nd 2nd 3th 2nd 2nd 3.

On the other hand, in cases where a correctional officer classified female prisoners who are confined in a detention house and conducts a indecent act by compulsion, such as parole, etc. by force, the victim is bound to have a great mental suffering due to a fluence and shame which makes it difficult for them to attend as a female, and any person can expect that the mental function of the victim may be hindered due to such shock. Therefore, it is difficult to view that there is no possibility of predicting the injury suffered by the above victim at the time.

(4) Sub-decisions

Therefore, the above defendant cannot be exempted from the liability for the crime of bodily injury caused by indecent act against the above victim. Thus, the above defendant and his defense counsel cannot be accepted.

Public Prosecution Rejection Parts

1. Summary of the facts charged

Of the facts charged in the instant case, the summary of the Defendant’s violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (Indecent Acts committed in the course of performing duties, etc.) with respect to the victim 6 is that the Defendant committed a harsh act with respect to the victim 6, as provided in paragraph (6) of the same Article.

2. Determination:

In light of the records, the above facts charged are crimes falling under Article 11(2) of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims, which can be prosecuted only upon a complaint under Article 15 of the same Act. According to the records, the above victim shall be prosecuted on June 16, 2006, after the prosecution of this case is instituted.

In this court, it can be recognized that the above victim made a statement to the effect that the defendant was able to use the defendant and the punishment against the defendant was not imposed, and it shall be deemed that the above victim expressed his/her intent to cancel the complaint against the defendant. Thus, this part of the public prosecution should be dismissed pursuant to Article 327 subparagraph 5 of the Criminal Procedure Act, but as long as it is found that the victim was guilty of the crime of cruel employment against the victim 6 who is in the relationship of commercial concurrent crimes, the dismissal of prosecution shall not be dismissed separately from

The reason for sentencing is that the Defendant has no record of being punished differently before the instant case, and that he has been employed as a correctional officer for more than 30 years, but the Defendant has been dismissed for more than one year from retirement due to the instant case, relatively old, and that there was an agreement with the said victim through the parents of the victim 7, etc., may be considered as favorable to the Defendant.

However, the defendant's crime of this case is a correctional public official who must take the lead in the correction and edification of prisoners and the basic human rights protection of prisoners, and the two fears of prisoners that if they fail to undergo the classification review, they may be affected by the treatment or parole in prison, etc., are forced to commit an indecent act by force or by using their positions in order to meet their sexual desire, and the quality of the crime is extremely poor. In addition, in this case, in the course of executing state punishment, the crime of sexual assault against prisoners whom correctional public officials are admitted in the facility is a crime of exercising state punishment rights, it is not only a serious issue that may threaten the legitimacy of public authority itself in that it is a crime of exercising state punishment rights against prisoners whom correctional public officials have been admitted in the facility, but also most of the correctional public officials who have committed the crime of this case who have been committed implicitly for correction and edification of prisoners under conditions that it is difficult to consider them as the top priority on the protection of human rights of prisoners and have been unable to receive the eye of their own body from the people.

Furthermore, even though the victims who abuse the right to classification review solely on the ground that they were the inmates' status were sexually and interviewed by the defendant, or the victims who were exposed to sexual cruel acts were women who suffered a big mental suffering due to the insult and humiliation to the degree that it is difficult to tell themselves as women, it is consistent only with the defense that the victims were gathering their own responsibility for committing a crime, and the circumstances after the crime are not very good.

On the other hand, the victim 7 suffered injury, such as acute stress disorder, after being forced to commit indecent act by the defendant, and attempted suicide and eventually led to death. Although it is difficult to readily conclude that the above victim died due to the defendant's crime, it cannot be denied that the crime of the above victim was an important motive for the defendant to make an extreme choice of suicide. Thus, the above stimulative result also cannot be considered as a reference for sentencing against the defendant.

In addition to these various circumstances, considering the need to severely punish an act of infringement of human rights that abused public authority to prevent such an act from occurring, there is no need to impose strict liability on the accused for such an act regardless of the favorable circumstances as seen above.

In addition, the sentencing conditions revealed in the public trial of this case shall be determined by comprehensively taking into account all the circumstances, such as the order.

Judges Hwang-ju

Judge Lee Jae-seok

Judges Noh Jeong-Gyeong