2015No414 Act on the Punishment of Sexual Crimes and Protection of Victims Thereof

A half (Minor Rape, etc. under thirteen years of age) and the sex offender

Violation of the Act on Special Cases Concerning Punishment, etc. (unborn Aged Person under Fifteen years of age);

[Aggravated Punishment, etc. of Aggravated Crimes in Name of the Crime]

Violation of the Korean Special Act (Indecent Acts such as Minors under thirteen years of age);

Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape)

The Act on the Protection of Children and Juveniles against Sexual Abuse

【Refluort (competence)】

2015 No. 33 (Joint Attachment Orders)

Weightet (66*********), driver

Residential water resources and cal. omitted;

- Docsansan-gun: Omission

Prosecutor

Kim Mok (prosecution) and He/she shall hold a trial.

Attorney Jeong-yang (Korean National Ship)

Daejeon District Court Decision 2015Gohap16, 2015 Decided July 16, 2015

6 Judgment

September 25, 2015

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for five years.

The defendant shall be ordered to complete the sexual assault treatment program for 80 hours.

Disclosure and notification of the information on the accused using an information and communications network for five years (Provided, That such notification shall be given

The summary of a sex offense shall be limited to paragraph (3) of the same crime.

The appeal against the prosecutor's request for attachment order shall be dismissed.

1. Determination of the accused case

A. Grounds for misunderstanding of facts (whether the defendant has sexual intercourse, etc. as stated in the judgment of the court below as assault)

1) The lower court found the Defendant guilty of the part of the charge of assaulting the part of the lower judgment on the ground that: (a) the evidence submitted by the public prosecutor alone is insufficient to recognize that the Defendant committed assault and intimidation to the extent that the victim was unable to resist or remarkably difficult, and that the victim was sexually forced to do so; (b) the victim did not do so despite the victim’s statement; (c) the Defendant did not have any response at the time of the commission of the crime; and (d) the Defendant did not have any response at the time of the commission of the crime; and (e) when having sexual intercourse with the victim, it is difficult to find that the Defendant committed assault and intimidation to the extent that the victim was unable to resist or remarkably difficult; and (b) it can only be deemed that the victim was sexual intercourse or similar with another victim by force, and thus, the Defendant committed the crime of assaulting the victim.

2) Examining the reasoning of the lower judgment in comparison with the record, the lower court’s determination is justifiable, and it cannot be said that there was an error by misapprehending the facts as alleged in the grounds of appeal, thereby adversely affecting the conclusion of the judgment.

B. The assertion of unfair sentencing

The Defendant had sexual intercourse with the victim living together for a long time through several times by force. The Defendant had sexual intercourse or sexual intercourse with the victim living together for a long time. The physical and mental impulse and pain suffered by the victim who was 12 or 16 years of age at the time of the instant crime appears to have been very significant. At the time of the instant crime, the victim was at the time of forming sexual identity and values, but it is anticipated that the instant crime would have a negative impact on the establishment of sexual identity and values in the future due to the instant crime. Furthermore, even though the Defendant was in a position to protect the victim, the Defendant abused the position to protect the victim, and instead, committed the instant crime over a long period of time. The scope of the sentencing guidelines for the instant crime (amended by the applicable sentences under the law) for the sentencing guidelines for the instant crime is imprisonment for three years and six years and six years, and at least the motive, number of years and methods of the instant crime, the victim’s frequency, and the scope of the instant crime’s recommendation and punishment, rather than for the instant crime.

In addition to these circumstances, considering the defendant's age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, and all of the sentencing conditions as shown in the records and arguments of this case, even if considering the circumstances favorable to the defendant (the defendant voluntarily surrenders to the investigation agency to commit the crime of this case, and all of the errors up to the trial court, and reflects the defendant's punishment at the victim's side, the victim's mother and the victim do not want to be punished, there is no other penalty power than twice, and there is no history of punishment for sexual crimes, and there is no history of punishment for sexual crimes, and the family members of the defendant are able to lead the defendant while submitting a written application, it is judged that the imprisonment (three years and six months) sentenced by the court below is unfair because it is too unreasonable.

2. Judgment on the case of a request for attachment order

There is no indication of the grounds for appeal concerning this part of the petition of appeal or the grounds for appeal submitted by the public prosecutor, and even after examining the judgment below, there is no ground for reversal after ex officio investigation.

3. Conclusion

Therefore, since the prosecutor's appeal on the part of the defendant's case is well-grounded, pursuant to Article 364 (6) of the Criminal Procedure Act, the part of the judgment of the court below regarding the defendant's case shall be reversed, and the prosecutor's appeal on the part of the request for attachment order shall be ruled as follows. Since the prosecutor's appeal on the part of the request for attachment order is without merit, it shall be dismissed pursuant to

Criminal facts and summary of evidence

The relevant column of the judgment of the court below is as follows.

Application of Statutes

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

(1) Paragraph (1)1 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Act No. 1020, Apr. 15, 2010)

Article 10258) Article 4 of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (No. 2010)

4. Article 5 (10) of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Act No. 10258)

the Act on the Protection, etc. of Victims of Sexual Crimes (hereinafter referred to as the "Act")

c) Article 8-2(5) and 8-2(2)2 (the point of similarity of minor power under the age of 13)

○ Decision 2: Paragraph 2 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Law No. 1283, Dec. 18, 2012)

Article 7(5) and 7(2)1 (wholly amended by Act No. 11556; hereinafter the same shall apply)

(a point of similarity of minor power)

A. Paragraph 3 of the judgment: The former Act on the Protection of Children and Juveniles against Sexual Abuse (Law No. 1190, Sept. 15, 201)

Article 7(5) and (1) of the Act (wholly amended by Act No. 11047) (the point of sexual intercourse with the power of juveniles)

(c) Article 7(5) of the Act on the Protection of Children and Juveniles against Sexual Abuse;

Article 1 (Power of Juveniles and Selection of Imprisonment and Imprisonment)

1. Mitigation of self-denunciation;

Articles 52(1) and 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes;

The first sentence of Article 37, Article 38(1)2, Article 50 and Article 50 of the Criminal Code are the largest.

12. Crimes of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts such as Minors under thirteen years of age);

[Aggravation of concurrent Crimes for Punishment]

1. Order to complete programs;

○ Each offence described in paragraphs 1 through 3-1 of the holding

Article 4 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Law No. 11572, Dec. 18, 2012);

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

○ Each offence described in section 3-b, (c) of the holding

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

1. An order of disclosure (each crime described in paragraphs (1) through (3) at the time of the marketing);

○ Crimes listed in paragraph 1 of the judgment

The former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010)

[1] Article 38(1)1 of the Addenda (Law No. 9765 of Jun. 9, 2009)

○ Each offence described in paragraphs 2 and 3-A of the holding

The former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012)

§ 38(1)1.

○ Each offence described in section 3-b, (c) of the holding

Article 49 (1) 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An order to notify (each crime described in paragraph (3) in the judgment);

○ 3-A. Crimes described in paragraph (1)

The former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572, Dec. 18, 2012)

Article 38-2(1)1 of the Act and Addenda (Law No. 10260 of April 15, 2010)

Article 1 (proviso) and Article 4

○ Each offence described in section 3-b, (c) of the holding

Article 50 (1) 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse

Obligation to Submit Personal Information

In the case where a judgment of conviction becomes final and conclusive on each of the facts stated in Articles 1 through 3-A of the instant criminal facts, pursuant to Article 3(1) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 9765, Jun. 9, 2009) and Article 33(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sept. 15, 201); Article 3-B of the judgment; (c) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sept. 15, 2011); and (d) where a conviction becomes final and conclusive on each of the facts stated in the instant criminal facts, each of the Defendant is a person subject to registration of personal information, and thus, the Defendant is obligated to submit personal information to the competent authority pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for three years and six months to twenty-two years; and

2. Scope of recommendations according to the sentencing criteria;

(a) No. 1, No. 2-A, b of the holding;

[Determination of Punishment] Sex Crime Group, General Criteria, Sex Offenses subject to the Age of 13, Type 4

Fluoral intercourses)

[Special Mitigations] Self-denunciations, Non-Punishments

[Recommendation and Scope of Recommendations] Special Mitigation Area, 2 years to 7 years of imprisonment

(b) No. 3-A, B, or C of the ruling;

[Determination of Punishment] A sex offender group, general criteria, rape (subject to at least 13 years of age), Type 2 (Juvenile)

Fraudulent means, threat of force, sexual intercourse

[Special Mitigation] Voluntary denunciation, Non-compliance with Punishment

[Recommendation and Scope of Recommendations] Special Mitigation Area, Imprisonment with prison labor from June to June 5

(c) Application of standards for handling multiple crimes: Imprisonment for two years to 12 years;

imprisonment with prison labor which is the upper limit of the scope of sentence 7 years + the scope of sentence 1 concurrent crimes (the second concurrent crimes at the time of sale)

one-half of the imprisonment of one-half of one year and six months + the upper limit of the sentence range for the concurrent crimes of No. 2 (No. 1 in sale)

[2 years and four months]

(d) Scope of the revised recommendation: Imprisonment for up to six years and up to 12 years and up to 10 months (the lower limit of the applicable sentencing in law); and

(2)

3. Determination of sentence: Five years of imprisonment; and

In light of all the conditions of sentencing as examined in the prosecutor’s aforementioned judgment on the assertion of unfair sentencing, the sentence shall be determined as per the order against the defendant.

(Presiding Judge)

New Eastern Constitution

Isi-Name

1) In the case of the crime described in paragraph (1) of the judgment, the time of the crime is only between around March 2010 and around April 15, 2010, since the time of the crime was from March 2010 to April 15, 2010.

It is problematic whether the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, enacted and enforced by Act No. 10258, but the defendant is the defendant

The Act on the Punishment of Sexual Crimes and Protection of Victims, etc. in favor of the Gu shall apply.