(영문) 서울중앙지방법원 2017.8.17. 선고 2017고합109 판결

The defendant is a student enrolled in the third grade of the OO high school located in Gwanak-gu in Seoul Special Metropolitan City, and the victim E (the age of 17) is a higher person assigned to the same half from the second grade of the high school.

From May 2015, the Defendant continued to assault and insult the victim as the president of the class, such as: “I am hye the victim’s head at any time from around May 2015 to his body; “I am hye hye hye hye hye hye hye hye hye and hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hye hy,” and “I am hye hye

1. Forced;

A. On October 21, 2015, at around 23:00 on October 21, 2015, the Defendant: (a) had the victim (the age of 16 at that time) take the Defendant’s panty, demanded that the Defendant’s sexual flag be called the Defendant’s chrony underground; and (b) when the victim refused it, the victim said that “scopy scopty scops” would inflict harm on the victim’s personal body; and (c) caused the victim to take the Defendant’s sexual organ, as the victim would inflict harm on the victim’s personal body.

B. On October 22, 2015, at around 24:00, the Defendant demanded the victim (the 16 years old at that time) to have the Defendant’s sexual tymnasium in the above “G” pension in the same manner as the above 1-A. In order to demand the victim (the 16 years old at that time) to hold the Defendant’s sexual tymnasium and let the victim drinking with her sexual tymnasty

C. On April 10, 2016, at around 23:00, the Defendant called the victim (at that time 17 years of age) at the Defendant’s home located in Gwanak-gu in Seoul Special Metropolitan City, for the Defendant’s underground space at the Defendant’s home, and when the victim does not comply with the Defendant’s demand, the Defendant saw the victim, as if he would inflict harm on the victim’s personal body, and let the victim frightbbbbbbbbling the Defendant’s home, and boomed the Defendant’s sexual flag, buckbuckbbs by hand.

Accordingly, the defendant assaulted or threatened the victim to have the victim do a non-obligatory act three times.

2. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse and coercion and coercion;

A. On June 6, 2016, the Defendant called the victim (the age of 17 years at that time) at the above defendant's house and demanded that the victim be Mas underground at the defendant's house, and when the victim did not respond to the demand of the defendant, the Defendant saw the victim as doing harm to the victim's personal body, let the victim fright to enter the defendant's house, and let the victim frightbbbbbbbbbbbbbs take hand to the defendant's sexual body, leading the victim's head, put the victim's sexual organ into the victim's entrance, and made the victim enter the victim promptly to the defendant's sexual organ.

B. On July 6, 2016, at around 19:05, the Defendant, within the above Defendant’s house, made the victim (the age of 17 years at that time) enter the said Defendant’s house 1) by the method set forth in paragraph 2(a) of the above Article, and, in the manner set forth in paragraph 2(a) of the above Article, demanded the Defendant to close down the Defendant’s sexual flag, resistance, buckbucks, etc., and continued to set down the Defendant’s sexual flag against the victim, and caused the victim to enter the Defendant’s sexual flag into the Defendant’s workplace.

Accordingly, the defendant, by assaulting or threatening the victim, had the victim do a non-obligatory act twice, and committed an indecent act twice by force.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness E, I and J;

1. Each investigation report (the sequence 66,69,71 of the evidence lists);

1. Details of fact-finding statements and text messages;

1. Recording notes;

1. Two copies of the minutes of the meeting of the autonomous committee for countermeasures against school violence, copies of the notice of results of the autonomous committee for countermeasures against school violence, reports on the results of the autonomous committee for countermeasures against school violence, official notices of K High Schools (report on the holding of the autonomous committee for countermeasures against school violence), guidance for attendance, and scheduled date

1. Text messages (suspect-victims);

1. Details of text messages, personal information, Lgrams and photographs;

1. Three copies of NAV outputs;

1. Storage c., such as telephone conversations;

Application of Statutes

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

Articles 7(5) and 7(2)1 (a) of the Act on the Protection of Children and Juveniles against Sexual Abuse) and Article 324(1) (a) of each Criminal Code (a coercion and choice of each imprisonment with labor)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Article 38 (1) 2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (the heavy penalty and penalty)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Order to complete programs;

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

1. The proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the first offense committed by the defendant, the sentence of the defendant's punishment, and the order to complete a sexual assault treatment program alone seems to be expected to some extent to prevent recidivism. In addition, in light of all the circumstances, such as the defendant's age, family environment, social relationship, etc. as shown in the pleading of this case, disclosure and notification order has significant adverse effects on the disadvantage and anticipated side effects of the defendant's suffering from disclosure and notification order; however, the effects of sexual crimes that can be achieved are relatively less likely to be achieved; however, there are special circumstances in which the defendant should not disclose or notify personal information).

Judgment on the defendant and his defense counsel's assertion

1. Summary of the defendant and his defense counsel's assertion

A. Although there is a fact that the Defendant received three times from the victim at each date and each place specified in criminal facts Paragraph (1) of the judgment, it is merely a fact that the Defendant received a general marina, and there is no assault or intimidation against the victim so that the victim may cause the victim to take three times into account his sexual intercourse.

B. The Defendant did not receive a marina or oral intercourse from the victim at the time and time specified in Article 2-2-1(a) of the facts constituting a crime in the judgment, and there was a fact that the Defendant received the victim’s mabs from the victim, such as wood, shoulder, bucks, bucks, and bucks, at the time and place specified in Article 2-2(b) of the facts constituting a crime in the judgment, but there is no fact that the victim assaults or threatens the victim to cause the victim to escape from sexual intercourse or to force the victim to make his/her sexual intercourse.

2. Determination

A. Whether or not there exists a fact that the defendant has had the victim take the same sexual intercourse as the statement of each criminal facts in the judgment

In full view of the following circumstances that can be recognized by the evidence of each time, etc. as above, the defendant's assertion that the defendant and his defense counsel have received it from the victim by requiring the victim to engage in each of the sexual intercourses or the sexual intercourses (hereinafter referred to as "the sexual intercourses of this case in total, and all of the oral intercourses of this case", at the time and place of each criminal facts stated in the judgment of the defendant, and at the same time and place as indicated in the judgment. Thus, the defendant's assertion that the defendant did not have received the sexual intercourse of this case, etc. of this case, or that the victim's sexual intercourses of this case were arbitrarily or promptly sexual intercourses of the defendant is without merit.

① On July 15, 2016, from the time when the victim prepared a statement of facts to receive school violence cases at the School Violence Committee, he/she caused the Defendant to commit a stimulious act, and even on the following day, he/she became able to individually leave the house of the Defendant. The Defendant continued to do so, and even after July 18, 2016, he/she prepared and submitted a statement of facts that contain five items of damage. After that, the victim prepared a statement of facts in the school violence confirmation document prepared on July 25, 2016, stating that “the victim had math or oral intercourse over five occasions without any choice from time to time stated in the facts of the crime,” and submitted a detailed statement from the investigative agency to the investigation agency to this court consistent with this Act.

(2) In particular, on June 6, 2016, the Defendant does not have received the marina itself from the victim.

The victim asserts to the effect that he/she consistently received the Defendant’s telephone or text message from the investigative agency to the instant court, around 10:50 on June 6, 2016, and stated to the effect that he/she returned to his/her home after receiving the victim’s mother telephone from the victim’s mother. On the other hand, the Defendant, although he/she agreed to receive the victim’s marina, did not receive the victim’s voluntary learning time due to the lapse of 11:45 hours later than the victim’s promise, is conflicting with the Defendant’s statement. However, according to the monetary content and text message sent by the Defendant and the victim, the Defendant sent five text messages from 09:50 to 10:37 on June 6, 2016 to the Defendant, and the victim sent the victim’s text message from 10:04 to 10:41 on the same day, and the mother of the victim’s phone call from 10:08 to 104:41 on the same day, and the victim’s phone.

③ On July 17, 2016, immediately after the victim prepared and submitted a statement of fact to the School Violence Committee, the victim asked the defendant that "I am unable to do so when I am sexually?" "I am am sexually?" and the defendant asked that "I am am sexually, I am am sexually?" and the victim am am am sexually or am sexually, and I am am am am am even if I am am am am at all, I am am am. I am am am even if I am am am while I am am am.? I am am am ? I am see that I am am asked "I am am sexually??? I am am you am am the victim first am son?? I am am am me we see that I am am sexually? I am you we am am am me we we am ? we we we am am am we we we we am we am we we we we we we we we we we we we we we we we we we we we we we we we we we we we .................................................................

④ At the time of school travel on October 21, 2015 and October 22, 2015, the Defendant: (a) caused the victim to extinguish fire to the room and lock the door; and (b) caused the victim to close the door; (c) on April 10, 2016; (d) on July 6, 2016, the Defendant got the victim to leave the house; and (d) on July 6, 2016, the Defendant had the victim leave the house; and (e) there was no turling situation if the door is closed because the Defendant’s house does not exist at the time, or the space is separated even if the Defendant’s punishment is separated; and (e) even at this time, the Defendant got out of the house after closing the visit and received it from the victim. However, if the Defendant received general marina as alleged by the Defendant, it is difficult to say that it would have been cut off from the closed space.

⑤ The victim made a statement that there was a little statement to the effect that “the Defendant forced the victim to engage in the instant sexual intercourses, etc. on five occasions during the period from the time of school travel to July 2016.” The victim made a statement to the effect that I, J, investigative agencies, and this court consistently sought the above damage from the victim, and consistent with the victim’s statement.

B. Whether each of the instant sexual horses was forced by the Defendant

1) The term “incrimination” refers to the act of assaulting or threatening a person to interfere with the exercise of a person’s right or to have a non-obligatory act. Here, intimidation refers to the act of objectively restricting the freedom of decision-making, or notifying harm and injury likely to be drinking so as to interfere with the freedom of decision-making (see, e.g., Supreme Court Decision 2002Do3501, Nov. 22, 2002). Meanwhile, intimidation, the means of coercion, generally, gives notice of harm and injury to the extent of causing fear to ordinary people, and can be said to be made using one word without one word, depending on the case’s ordinary language, or as a result, it can be said that the act was committed. The degree of harm and injury caused to a person being threatened in the crime of coercion should be determined by taking into account not only the appearance of the act, circumstances leading to the act, relation with the victim, etc., as well as surrounding surrounding circumstances such as the victim’s duty, social status, and mutual right and duty (see, etc.).

2) Examining the following circumstances that can be recognized by evidence, etc. from each of the above occasions in light of the legal principles as seen above, the fact that the Defendant forced the Defendant to force the Defendant to visit each of the instant sexual intercourse by threatening the victim, thereby allowing the victim to engage in sexual intercourse against his/her free will. Therefore, the Defendant and the defense counsel’s assertion on this part is without merit.

(1) The Defendant and the victim were in the same rank in the second and third years as those in high school, and were in the same rank for two years.

② The Defendant was in charge of the president of a class in high school 2 and 3, and was sexually superior, and was in charge of mentoring among his students. The Defendant’s mother was in charge of the parent’s representative. However, when there is a conflict with his/her friendship, the Defendant talked about this fact in order to have his/her friendship. The Defendant, not only the victim, but also the other relatives, such as I and J, frequently got out of the distress level between common friendship. On July 2016, 2016, the Defendant did not resist or resist the Defendant until the Defendant was referred to the School Violence Countermeasures Committee as a school violence case.

③ The victim was in charge of the vice-chairperson of a class in the second year of high school. From the second year of high school to the health problem, his father was hospitalized into a high school, his school did not reach the record, and was found to have failed to keep his/her friendship with his/her friendship in the class. The Defendant, together with the victim, was friendly when he/she was engaged in the same service club with the victim, and he/she was friendly when he/she was left with the victim. However, the Defendant neglected the victim’s performance when he/she was in a group with other friendships, or neglected the victim’s performance.

4. The victim appears to have continuously indicated his/her refusal to do so from the time of school travel to the time of the last crime of this case, and the defendant and the victim's currency on July 17, 2016.

녹취록상 피고인이 피해자에게 "내가 얘기했을 때 너가 싫다고 몇 번 했는데, 싫다고 몇 번 한 거 알아. 근데 내가 그냥 부탁한 거잖아 해달라고", "너가 싫어한다고, 너가 힘들다고 내 몸에 근육이 많다고, 딴딴하다고 힘들다고 했을 때", "너가 힘들다고 했었어, 근데 내가 꼭 해줬으면 좋겠다 그래서 얘기하니까 너가 그냥 알았다고 하고 왔었잖아."라고 대화한 내용에 비추어 보더라도 피해자가 거부의 의사표시를 표시한 사실은 인정된다.

⑤ Although there is doubt as to whether the victim has a same-sex orientation to the victim, such as attempting to harm the sexual intercourse with I, the victim voluntarily states that he/she does not have a same-sex inclination. Even if the victim has a same-sex inclination, as the defendant asserts, the victim is free to decide the subject matter even to the victim, and according to the witness and M’s statement, the victim is good for the same-sex faces, and thus, the form of the victim is far from the defendant.

⑥ 피고인은 이 사건 각 범행 당시 피해자에게 "씨발 그냥 하라고" 또는 "거기도 빨아 봐, 씨"라고 이야기 하는 외에는 피해자에게 명시적인 해악의 고지를 한 것은 없는 것으로 보인다. 특히 2016. 7. 6. 마지막 범행 당시에는 피해자에게 "힘들고 기분이 상하는거면 안하는 게 낫지, 난 친구를 존중하는 걸 좋아한단다 내일 걍공부나 하자"라고 문자메시지를 보내기도 하였음에도 피해자는 피고인에게 성기 마사지와 구강성교를 해 주었다. 그러나 피해자는 이 사건 각 범행 당시 17, 18세 미성년자로 동급생인 피고인과 학급 내에서의 영향력에 차이가 크고, 피고인은 피해자를 성적이 나쁘다거나 성 정체성이 이상하다는 등의 소문을 내기도 해서 이로 인해 피해자가 곤란해지기도 했으며 피해자가 피고인의 제안을 거절할 경우 폭행이나 욕설의 정도가 심해지기도 했다. 또한 증인 J의 증언에 비추어 보면 피해자는 다른 친구들의 안마 부탁은 거절하는 경우가 있었으나 피고인의 부탁은 한 번도 거절하지 않은 것으로 보인다. 결국 피고인의 이 사건 각 범행 당시 피고인의 언동은 피고인과 피해자의 관계, 이 사건 각 범행에 이르게 된 경위 등을 종합적으로 고려해 보면 피해자로 하여금 의사결정의 자유를 제한하거나 의사실행의 자유를 방해할 정도로 겁을 먹게 할 만한 묵시적인 해악의 고지였던 것으로 보인다.

C. Whether each of the instant lectures was by the power of the Defendant

1) In the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, the term “defluence” refers to a sufficient force to suppress the victim’s free will, and as a tangible or intangible, it is also possible not only to use the social, economic, political status or authority of the offender, but also to use the offender’s social, economic, and political status or authority. Whether the offender has sexual intercourse with a ‘defluence’ should be determined by comprehensively taking into account all the circumstances, including the content and degree of the tangible power exercised, the victim’s age, the relationship between the offender and the victim, the circumstances leading to the act, the specific manner of the act, and the circumstances at the time of the crime (see, e.g., Supreme Court Decision 2007Do4818, Aug. 23, 2007).

2) As to the instant case, it appears that it was difficult for the Defendant to refuse the request or direction of the Defendant, as follows: ① although the Defendant and the victim were under the same age, as seen earlier, the Defendant had been under the influence of the victim within a class; ② if the victim refused the proposal of the Defendant, violence or abusiveism against the victim was serious; ② the Defendant could have an impact on the victim’s school life in friendly relationship with the victim or in the superior position at school; ② the Defendant could have an impact on the victim’s school life in friendly relationship with friendly relationship with the victim; ③ the Defendant appears to have been aware; ③ the victim appears to have been under the influence of her school life; ③ the victim appears to have failed to refuse the request of the Defendant even if she had the Defendant interfered with the physical strength of her head, and ④ the victim appears to have failed to have been under the influence of each of the instant crimes, and even if the Defendant did not have been under the influence of his defense counsel, it appears that the victim did not have been under the influence of each of this case.

Reasons for sentencing

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

2. Scope of recommendations according to the sentencing criteria;

(a) Basic crimes and concurrent crimes: Crimes in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

[Determination of Punishment] A sex crime, general standard, crime of indecent act by compulsion (subject to the age of 13 or more), type 2 (Indecent act, such as indecent act by compulsion, living intrusion, etc. by relatives relation), special indecent act

【Special Esponsor] Where the exercise of tangible power is significantly weak;

[Scope of Recommendation] Imprisonment from one year to two years (Mitigation)

* descriptive standards: The upper and lower limit of sentence shall be reduced to 2/3 each because it falls under juvenile indecent acts (including deceptive or deceptive acts).

(b) Concurrent crimes: Compulsory crimes;

[Determination of Punishment] Obstruction of Exercise of Rights, Compellion, Type 1 (General Coercive)

Where the degree of coercion is minor

[Scope of Recommendation] Imprisonment from one month to eight months (Discretionary Zone)

(c) Criteria for handling multiple crimes: Imprisonment with prison labor for one year to February 20 of three years (two years which are the upper limit of basic crimes + one year which is 1/2 of the upper limit of the first concurrent crimes + 1/3 of the upper limit of the second concurrent crimes).

(d) Scope of revised sentencing: Imprisonment between June and February 20 (the lowest limit of the sentencing range recommended by the sentencing criteria is lower than the statutory minimum applicable sentencing range, and therefore the lower limit of the applicable sentencing range is set at the law lower limit of the applicable sentencing range); and

3. Determination of sentence;

The Defendant, by means of intimidationing that he had superior influence between the victims compared to the victims, made the victim salute of each of the instant sexual intercourse by force, and caused the victim to take a salute of each of the instant sexual intercourse by force, is not liable for such crime. The victim appears to have suffered a considerable mental pain due to the instant case, and continuously suffered a considerable sense of sexual humiliation. Nevertheless, the circumstances after committing the crime are not good, such as demanding the victim to have the victim feel a sense of sexual humiliation and to have a statement that the sexual identity of the victim is abnormal. The Defendant still remains punished by the Defendant because it did not reach an agreement with the victim. In light of this, it is inevitable to punish the Defendant.

However, considering the facts that the Defendant was the primary offender and the fact that the Defendant was a juvenile of 17 and 18 years old at the time of each of the instant crimes, the Defendant’s age, family relationship, motive and circumstance of the instant crimes, means and method of the instant crimes, and circumstances after the instant crimes, etc., the punishment as ordered shall be determined in light of all the sentencing factors indicated in the instant arguments, such as the Defendant’

Registration of Personal Information

Where a conviction becomes final and conclusive with respect to a crime of violating the Act on the Punishment, etc. of Sexual Crimes against the Defendant, the Defendant is a person subject to registration of personal information pursuant to Article 42(1) of the same Act and is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act (On the other hand, in this case, the crime of coercion and the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, which caused the registration of personal information in accordance with the former part of Article 37 of the Criminal Act, are concurrent with each other in accordance with the former part of Article 37 of the Criminal Act, and is sentenced to imprisonment for two years and six months in accordance with Article 38(1)2 of the Criminal Act. Thus, it is not deemed unreasonable to view the entire sentence as a sentence for a sex crime which caused the registration of personal information. Thus, Article 4

It is so decided as per Disposition for the above reasons.