(영문) 수원지방법원 안산지원 2021.5.14. 선고 2020고합326 판결

For the accused, an employment restriction shall be issued to the child or juvenile-related institutions, etc. and welfare facilities for the disabled for three years.

The seized evidence No. 1 shall be destroyed.

Reasons

Criminal facts

【Criminal Records】

On January 13, 2021, the Defendant was sentenced to 8 months of imprisonment with prison labor for violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “Cameras”) in the Suwon District Court’s Ansan Branch on January 13, 2021 and the judgment became final and conclusive on January 21, 2021.

【Criminal Facts】

1. The Defendant had access to the file-sharing website E with LG mobile phone 50 (S/ND) at the Defendant’s residence in the insular city B apartment and C, and had an animation file “F” with the content that a female student character is sexually recognizable as a juvenile, such as following his/her hand in the class of the school, wearing a sports uniform, with snow and string with a verification tape, etc., and carried the said file by around August 24, 2019, and around 17:14:52, the Defendant took measures to prevent other people from viewing the said file from his/her cell phone, and possessed it until July 15:30, 2020.

2. On May 18, 2020, the Defendant: (a) connected the above LG mobile phone G from the above LG mobile phone site to the above LG mobile phone site; (b) opened a female student character, which can be clearly perceived as a juvenile, such as wearing a uniform within the school class, and opened a h'h "animation with a content that enables a male motherer to grow up with a male motherer with his/her sex exposed at the upper part of the book, with his/her sex exposed to him/her; and (c) carried the above file from around 11:44:34 on July 23, 2020 to make it impossible for others to view it from his/her cell phone; and (d) possessed it until July 15, 2020.

Accordingly, the defendant possessed the above two files with the knowledge that they are child and juvenile sex exploitations.

Summary of Evidence

1. Statement of the accused in the first protocol of trial;

1. Data on the image of the files of sexual exploitations specified in paragraph (1) of the crime, image data of the files of the criminal facts of the crime, and investigation reports (attached to a report on the analysis of digital evidence, etc.);

1. Records of seizure and the list of seizure;

1. A certificate of electronic information;

1. Previous records of judgment: A inquiry report, such as criminal records, and a final and conclusive judgment of a defendant A (baginary support 2020, 3050);

Application of Statutes

1. Article applicable to criminal facts;

Article 11(5) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (aggravating concurrent crimes with punishment prescribed in Article 1 of the Criminal Act with heavier punishment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. Suspension of execution;

Article 62(1) of the Criminal Act ( repeatedly taking into account favorable circumstances among the reasons for sentencing below)

1. Order to attend lectures;

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

1. To impose an order to disclose or notify information;

Although the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse constitutes a sex offense against children or juveniles under Article 2 subparagraph 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse, it does not constitute a sex offense against children or juveniles under Article 2 subparagraph 3 of the same Act, but is changed from "a person who commits a sex offense against children or juveniles" to "a person who commits a sex offense against children or juveniles from "a person who commits a sex offense against children or juveniles" under Article 17282 of the same Act on May 19, 2020. However, according to Articles 1 and 3 of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 5 19, May 19, 2020), the above revised provisions are applied from "a person who commits a sex offense against children or juveniles after November 20, 202, which was prior to the enforcement of the above Act, and therefore, the above revised provisions do not apply to the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse.

1. An employment restriction order;

The main sentence of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and the main sentence of Article 59-3(1) of the Act on Welfare

1. Scrapping1);

Article 48(1)2 and (3) of the Criminal Act

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for up to six months from June 22;

2. Non-application of the sentencing criteria;

The sentencing criteria shall apply to crimes against which a public prosecution has been instituted in the court after the sentencing criteria become effective, and this case has been instituted on November 12, 2020 before the enforcement date of the sentencing criteria for digital sex crimes ( January 1, 2021) and thus the sentencing criteria shall not apply.

3. Determination of sentence: Six months of imprisonment and one year of suspended sentence;

The crime of this case is a matter of possession of a child or juvenile sexual exploitation by the defendant with the downloading of the sex of the child or juvenile, and the crime of possession of a child or juvenile sexual exploitation is not a good crime in that it undermines the sound sexual culture of our society and promotes a distorted and distorted sexual desire.

However, given that the Defendant appears to have an attitude of recognizing and opposing his mistake, and that the latter concurrent crimes of Article 37 of the Criminal Act, such as a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes) (the Act on the Punishment, etc. of Sexual Crimes) for which a judgment has become final and conclusive, should be considered in favor of the case where the judgment was rendered at the same time and the equity should be considered, and all sentencing factors indicated in the records and arguments of this case, such as the Defendant’s age, character

Registration of Personal Information

Where a judgment of conviction becomes final and conclusive on the facts constituting a crime in the judgment, 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, and is obligated to submit personal information to the competent authority

Judges

Judges Kim Young-young

Judges Cho Jae-han

Judges Southern-Man-Un

Note tin

1) A prosecutor is entitled to confiscation under subparagraph 1 of the evidence, but this is an electronic record created by a criminal act extracted from a mobile phone of the defendant and thus is subject to destruction, and thus, it shall not be sentenced to confiscation separately.

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제42조 제1항

-아동ㆍ청소년의 성보호에 관한 법률

-아동ㆍ청소년의 성보호에 관한 법률 제2조 제2호

-아동ㆍ청소년의 성보호에 관한 법률 제11조 제5항

-아동ㆍ청소년의 성보호에 관한 법률 제21조 제2항

-아동ㆍ청소년의 성보호에 관한 법률 제56조 제1항