(영문) 서울중앙지방법원 2017.2.10. 선고 2016고합1232 판결

The disclosure of information on the accused shall be disclosed through an information and communications network for five years, and the notified information shall be notified during the above period (Provided, That the target crime is limited to the crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

Reasons

Criminal facts

While the Defendant had a sense of care for the victim C (a family name, 32 years of age) who was in the workplace, had the victim C (a family name, female name, and 32 years of age), had the victim's house enter the victim's house, had the victim's house located in the office located in Gwanak-gu in Seoul Special Metropolitan City, and had the victim's house string the victim's key inside the office located in Gwanak-gu in Seoul Special Metropolitan City, and had the neighboring key copy the key at the victim's house, and had the victim's house string back by putting the key in the victim's house back to the back of the victim's house.

1. Intrusion upon residence;

A. At around 16:00 on June 21, 2016, the Defendant opened a victim’s house door and taken a video image of the victim’s cell phone with the Defendant’s cell phone who was in possession of the victim’s house, using the crepane of the victim’s house prepared before the victim’s house located in Gwanak-gu, Seoul Special Metropolitan City.

B. On October 2016, the Defendant taken photographs of the victim's cell phone using the Defendant's cell phone which was in possession of the victim's house at the same place as the above paragraph (a) at around 21:00 on the first day of October 2016.

Accordingly, the defendant violated the victim's residence more than twice.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

On October 2016, the Defendant purchased an examination color of snow and fluor’s materials polym, mixed sea, fingers, transparent tape, etc. in the Internet shopping mall, miscellaneous store, etc. with a view to rapeing the victims returning to the house of the victim.

On November 3, 2016, at around 21:30, the Defendant: (a) carried the goods purchased as above and digital cameras to photograph rapes; and (b) entered the victim’s house in the same place as the above 1-A in accordance with the same manner as the above 1-A, and invaded the victim’s residence.

The defendant continued to use test divers and divers the body behind the inner door of the victim, which was hidden by the victim's way to come back, and siversed the victim's resistance with transparent tape, and led the victim's hiversing of the victim's hivers, and hiversd the victim's hives, "if hives the victim's hives, hives," and "we have taken hives. hives the victim's hives and panty hives. h. h. h. h. h. h. to well hear the horses." The defendant tried to write the victim's sexual flag into the part of the victim's hives, but the victim's halves and h. h. h. h. h. h. h. to the victim's head or sound outside of the victim's body, and tried to arrest the victim's h.

Summary of Evidence

1. Defendant's legal statement;

1. Statement made to C by the police;

1. Seizure records;

1. Two copies of the medical certificate of injury;

1. One CD, such as each photograph (Evidence Nos. 3 through 8 of the evidence list), the victim's photograph, and the victim's internal photographic photo taken by the suspect, and video files, etc. inside the victim;

Application of Statutes

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

Articles 8(1), 15, and 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 297 of the Criminal Act (the point of attempted rape and attempted rape) and Article 319(1) of the Criminal Act (the point of residence intrusion and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Provided, That the aggregate of long-term punishments for each crime)

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. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. An order for disclosure and notification;

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the main sentence of Article 49(1) and the main sentence of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

Registration of Personal Information

Where a conviction becomes final and conclusive with respect to a crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.), 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.

Reasons for sentencing

1. The scope of applicable sentences: Imprisonment for not less than five years nor more than eighteen years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) A violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

[Determination of Punishment] In the event that the result of an injury to a sex offender has occurred, the type six (Rape, such as intrusion upon residence, special rape) shall be at least 13 years old.

[Special Mitigation] In the event of occurrence of the result of an injury but the basic crime is attempted, minor injury;

[Scope of Recommendation] Special Mitigation (3 years of imprisonment - 9 years of imprisonment)

(b) No sentencing criteria are set for each residential intrusion;

In principle, the lower limit of the punishment on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) for which the sentencing criteria are set shall be set, and since the lower limit of the punishment on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) for which the sentencing guidelines are set is five years or more, the said lower limit shall be set.)

3. Determination of sentence;

[In light of the aforementioned legal principles, each of the crimes of this case committed by the Defendant was committed in advance for the purpose of rape of the victim, the Defendant committed the crime committed in advance, copied the key of the victim’s house, and invaded the victim’s residence, taken a dynamic image or photograph, and attempted to rape the victim who returned home by re-infusing the victim’s residence, and attempted to rape the victim. The crime committed in the course of rape and attempted to commit rape is very rough and bad. The degree of indecent act committed in the course of the crime is serious. While the Defendant did not move to the place of the crime, the Defendant prepared a camera to photograph the scene of the crime. While the Defendant did not move to the place of the crime, the victim was committed by the Defendant, who was at his own workplace with the same work fee, due to sexual humiliation and big mental impulse, and was under serious pain, such as moving the victim’s residence and failing to work at work. The Defendant did not receive the letter from the victim.

[Liet circumstances] Rape was committed during the attempted rape. The injury inflicted on the victim does not seem to have been serious. The Defendant repented his mistake and reflected against himself. The Defendant is the first offender who has no record of criminal punishment.

In addition, the defendant's age, character and conduct, environment, family relationship, motive and circumstances of each of the crimes of this case, circumstances after the crime, etc. shall be comprehensively considered and the punishment shall be determined as ordered by the order.

Judges

Judge of the presiding judge;

Judges Kim Gin-han

Judges fixed-type

Note tin

1) The facts charged were corrected according to facts obtained through the examination of evidence without the amendment process to indictment to the extent that it does not hinder the Defendant’s exercise of the defense right.

참조조문

-성폭력범죄의 처벌 등에 관한 특례법 제3조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제8조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제15조

-성폭력범죄의 처벌 등에 관한 특례법 제16조 제2항

-성폭력범죄의 처벌 등에 관한 특례법 제42조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제47조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제50조 제1항

-형법 제37조

-형법 제38조 제1항 제2호