Defendant

Defendant and the respondent for attachment order, Prosecutor

Appointment Regulations

Attorney Jeon Soo-soo (Korean)

Suwon District Court Decision 2010Mo324, 201Mo222 (Joint), 2011Mo5 (Consolidated) Decided July 22, 2011

All appeals filed by the defendant and the person subject to attachment order and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant and the person to whom the attachment order was requested (hereinafter referred to as “Defendant”);

The sentence sentenced by the court below (five years of imprisonment) is too unreasonable.

(b) Prosecutors;

1) The part of the defendant's case (injury by robbery)

In full view of the following facts: (a) the Defendant, who had metd the Defendant’s parents during detention, committed the robbery in the instant case; and (b) the Defendant’s call around the scene of the crime was recognized at the time of the occurrence of the instant case; (c) the Defendant smokeed tobacco at the same Madrid observer as the Defendant discovered at the scene of the instant crime; and (d) the police seized clothes and shoes similar to the Defendant’s wearing at the Defendant’s home, the lower court acquitted the Defendant of this part of the facts charged, despite its acknowledgement that the Defendant committed robbery.

2) Part of the attachment order case

A protective disposition that a defendant received due to a sexual crime prior to the instant case is a protective disposition that was rendered by the first instance court and has the same value as the judgment of conviction. Therefore, it is reasonable to view that at least the records of juvenile protective disposition that a person subject to a request for attachment order was sentenced by the first instance court and received by the high court is included in “two or more sexual crimes” under Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders. Nevertheless, the lower court’s dismissal of the request for attachment order on the ground that the above protective disposition is not included in the above two

2. Determination on the part of the defendant's case

A. Determination as to the prosecutor’s assertion (inflictingd part)

1) As evidence of guilt against the Defendant, the victim Nonindicted 1’s statement, the statement to the effect that the Defendant led to an interview with his parents, the confession of the crime of this case, and other facts such as the Defendant’s telephone conversations around the place of the crime at the time of the occurrence of this case, the Defendant’s smoking tobacco at the place of the crime of this case, and the fact that the police seized clothes and shoes similar to those worn by the suspect at the Defendant’s home.

2) First, we examine the victim Nonindicted 1’s statement.

On July 17, 2010, on the day of the occurrence of the instant case, Nonindicted Party 1 made a statement on the offender’s appearance at the police station on July 17, 2010, and the contents of the statement were different from the Defendant’s age, body size, appearance, etc., and according to the police investigation report, “ Nonindicted Party 1 was unable to accurately memory the suspect due to shock at the time of the instant case.” Accordingly, Nonindicted Party 1 made it impossible to do so. On October 18, 2010, the police confirmed whether the Defendant had shown the Defendant through a special interest with the victim, and at this time, Nonindicted Party 1 made a statement on whether the Defendant was the offender. Nonindicted Party 1 stated that “I, on the face of her head, she was well aware that she was the offender, I would have come back with the victim’s appearance, and that I would have come back with the victim’s appearance.” After that, Nonindicted Party 1 made a statement at the prosecution and the lower court.

However, in light of the fact that the victim's initial statement of the offender was different from that of the defendant (the victim's photograph taken around June 2, 2010 near the day of the crime in this case, the head of the defendant was short and conclusive unlike the victim's statement. The trial record 20 pages), the possibility that the defendant could not observe the basic procedure required in the criminal identification procedure, and the possibility that the criminal category was conducted cannot be ruled out in the situation where the non-indicted 1 knew that the defendant could be a criminal, and the human memory was prepared after the lapse of time, and rather, the memory of the non-indicted 1's criminal was clearly made from any point of time, it is difficult to recognize the credibility of the non-indicted 1's statement, unless any additional circumstance is recognized, and the non-indicted 1's face was not accurate at the time of the crime.

3) The fact that the Defendant stated that he had committed a crime is recognized. However, considering the fact that the Defendant consistently denies the Defendant’s statement to the prosecution, the court below, and the court of the trial, as alleged by the Defendant, to the prosecution, the court of the trial, and the court of the trial, and the possibility that the Defendant was suspected of committing the crime of bodily injury resulting from rape and injury as alleged by the Defendant, it cannot be ruled out that the Defendant committed a crime with the intent to agree with the victim, once he was suspected of committing the crime, and that the parent was committed the crime, and the circumstances supporting the Defendant’s statement in addition to the above statement are unclear, it is difficult to readily conclude this part of the charges

4) In addition, considering the following facts: (a) it is difficult to view that titts seized at the Defendant’s home are the same as the suspect on CCTV screen in light of the trademark on the right side of yellow Dorts seized at the Defendant’s house; (b) even if the suspect on CCTV screen designated by the police is the Defendant, the suspect cannot be readily deemed as the Defendant; and (c) the Defendant could not be determined as the Defendant at the time of the occurrence of the instant case; (d) although the Defendant was in a call near the place of the instant crime, the Defendant’s house is also near the place of the crime; (e) in light of the fact that the Defendant could not be determined as the offender solely on the ground that the tobacco discovered at the place of the crime was a criminal; and (e) even so, it is difficult to find the Defendant guilty of the instant facts charged; and (e) there is no reasonable ground to view that the remainder of the evidence submitted by the prosecutor is insufficient to prove this part of the facts charged.

B. Determination on the Defendant’s assertion (unfair punishment)

In light of the fact that there was no previous criminal conviction exceeding the fine prior to the instant case, the fact that the Defendant agreed with the victim of the crime of injury, and the fact that the parents of the Defendant are leading the Defendant, etc. However, the crime of rape injury by the Defendant seems to be very poor and the victim suffered very extreme mental pain due to the said crime, and thus, the victim's family members appear to have been suffering from the above crime despite the economic situation that makes it difficult for the victim to do so, the victim's family members up to directors, and other circumstances of sentencing as indicated in the argument of the instant case, such as the victim's age, character, character and behavior and environment, it does not appear to be a case where the Defendant has to determine the punishment by discretionary mitigation for each of the instant crimes. Therefore, the lower court's sentencing that sentenced the maximum five years of imprisonment within the range of punishment sentenced to aggravated concurrent crimes (five years and two years) cannot be deemed to be unfair. The Defendant's assertion is without merit.

3. Judgment on the part of the attachment order case

A. ① Although a protective disposition is issued through a substantive trial and determination by the Juvenile Department of the Family Court or the District Court, unlike the general criminal procedure, the court takes place ex officio and without involvement of the prosecutor from the guardian’s perspective of the juvenile, and it is difficult to view the juvenile as identical to a final and conclusive judgment of conviction proved by strict criminal procedure. ② Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders revised on April 15, 2010, the phrase “where a sexual crime was committed on two or more occasions,” and the phrase “where a protective disposition was issued on the protective disposition” was added to the part following the phrase “where a protective disposition was issued on the protective disposition,” it is reasonable to interpret that the above provision was not included in the protective disposition in the protective disposition for a more than two times prior to the revision of the Act, and that it is reasonable to interpret that the protective disposition should be included in the court’s new criminal procedure law’s final and conclusive interpretation of the Act without considering any controversy over past criminal records included therein.

B. According to the records of this case, in addition to the case where the defendant committed a sexual crime once in this case, the records of other sexual crimes are acknowledged as having been sent to the Juvenile Department at Seoul Family Court on April 22, 1999 as the charges of causing rape and only the records of receiving juvenile protective disposition around that time. As seen above, juvenile protective disposition is not included in a sexual crime under Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders since it is not included in a sexual crime under Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Electronic Monitoring, the request for attachment order of the location tracking device of this case on the premise that the defendant committed a sexual crime twice or more is without merit. In this purport, the court below dismissed the prosecutor’s claim for attachment of

4. Conclusion

Therefore, since the appeal filed by the defendant and the person subject to the attachment order and the prosecutor is without merit, all of them are dismissed in accordance with Article 364(4) of the Criminal Procedure Act and Article 35 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders.

Judges Choi Jae-sik (Presiding Judge)