Defendant

Prosecutor

Sub-sections

Attorney Kim Il-sung (Korean National Ship)

Seoul Central District Court Decision 2010 Gohap1005, 2010 Jeon high20 decided August 20, 2010

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

A defendant shall be punished by imprisonment for not less than three years and six months.

Disclosure of information on the accused shall be made public through an information and communications network for ten years.

The prosecutor's appeal on the part of the judgment below regarding the request for attachment order shall be dismissed.

1. The defendant case;

A. Summary of grounds for appeal

The sentence of the court below (two years and six months of imprisonment) is too unhued and unfair.

B. Ex officio determination

Before the judgment on the grounds of appeal, we examine ex officio prior to the judgment on the grounds of appeal, and the main contents of the crime acknowledged by the court of original judgment are that “Indecent act by force against the victim by inserting the victim’s fingers twice in the sound book.”

Article 7(5) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that “A person who has sexual intercourse with a female under the age of 13 or commits an indecent act against a person under the age of 13 by fraudulent means or by force shall be punished in the same manner as prescribed in paragraphs (1) through (3) shall be punished.” Article 7(5) of the same Act provides the same statutory penalty as the sexual intercourse due to deceptive means or by force and by force

Therefore, the criminal facts of this case constitute “an act of inserting part of the body (excluding fingers), such as fingers, etc., or implements to a sexual flag or anus” under Article 7(2)2 of the above Act, and its statutory penalty is imprisonment for a limited term of at least seven years.

However, on the premise that the crime of this case constitutes an indecent act by compulsion under Article 7(3) of the same Act, which provides the minimum statutory penalty for five years, the lower court sentenced the Defendant to imprisonment for a period of two years and six months within the scope of discretionary mitigation. Therefore, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

C. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(2) of the Criminal Procedure Act without examining the prosecutor's assertion of unfair sentencing, and the judgment is again rendered as follows.

The summary of the facts constituting an offense and evidence recognized by this court is the same as that of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 7(5) and (2)2 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 298 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act. Article 55(1)3 of the Criminal Act

1. An order for disclosure;

Article 38 (1) 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse

There are extenuating circumstances, such as the fact that the Defendant had no past criminal history for the young age of 19, the parent’s divorce has been living in the nursery center from the fourth to nine years from the elementary school, and is suffering from liver diseases.

However, there are circumstances unfavorable to the Defendant, such as the following: (a) the Defendant: (b) was unable to commit a crime by inducing the victim under the first grade age of elementary school to make indecent acts by compulsion; (c) did not compensate for the damage even though he had inflicted a huge mental or physical damage on the victim; and (d) did not reach an agreement with the victim.

In full view of the above normal reasons, the statutory penalty for the instant crime is at least seven years of imprisonment, and other circumstances, the punishment as ordered shall be determined as per Disposition.

2. A case for which an attachment order is requested;

In the event a prosecutor files an appeal against a prosecuted case, it is deemed that an appeal has been filed regarding an attachment order case pursuant to Article 9(8) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders. However, the prosecutor fails to submit any grounds for appeal regarding the attachment order case, and even if examining the judgment of the court below, the reason for investigation and destruction as to this part ex officio is not found.

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

Judges Kim Jae-chul (Presiding Judge)