2018No1845 Recognition of Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

(B) The Protection of Children and Juveniles against Sexual Abuse Act

Violation of the Act on the Protection of Children and Juveniles by Indecent Act

Violation of the Family Protection Act (Quasi-Indecent Act by compulsion), children and juveniles;

Violation of the Act on the Protection of Sexual Abuse (Indecent Acts such as Fraudulent Means)

2018 Jeonno112 (Joint Attachment Orders)

A

Both parties

The Prosecutor General, the Prosecutor General, the Prosecutor General, and the Prosecutor General

Law Firm Lee Dun

Attorney Choi Han-jin, Counsel for the defendant-appellant

Suwon District Court Decision 2017Gohap271, 2017 decided June 19, 2018

Jeon High Court Decision 14(Joint Judgment)

December 14, 2018

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for ten years.

For the accused, an employment restriction shall be issued to a child or juvenile-related institution, etc. for three years. An order shall be issued to a person subject to an application for an attachment order to attach an electronic tracking device for 20 years. Matters to be observed by the person subject to the application for an attachment

1. Summary of grounds for appeal;

(a) Defendant and the respondent for an attachment order;

1) The part of the defendant's case (the guilty part of the original judgment)

A) misunderstanding of facts and misapprehension of legal principles

The defendant and the person subject to a request for attachment order (hereinafter referred to as the "defendant") have agreed to engage in sexual intercourse and sexual intercourse as a relation with the victim, and did not have sexual intercourse, similarity, or indecent act by force with the victim. The victim did not have credibility of his statement because there exists a circumstance in which the victim intended to engage in sexual intercourse with the offender with the offender, and there is no day of the defendant's sexual intercourse with the victim since the part indicated on the day of sexual intercourse with the victim was indicated as the day of the defendant's self-defense. Nevertheless, the court below's decision that recognized the credibility of the statement made by the victim and recognized this part of the facts charged is erroneous in the misapprehension of legal principles and erroneous in the misapprehension of legal principles.

B) Unreasonable sentencing

The punishment of the court below against the defendant (10 years of imprisonment) is too unreasonable.

2) The part for which the attachment order is requested

Since the defendant did not commit each of the crimes in this case due to the habitation of sexual crimes, the attachment order is unfair since there is no risk of recommitting a sexual crime.

B. Prosecutor,

1) misunderstanding of facts (not guilty part of the lower judgment)

The victim made a clear statement on October 8, 2014 that corresponds to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Quasi-Indecent Act) and the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act, etc.) on November 14, 2014. According to the Defendant’s pocket book entry, the victim’s statement is reliable. Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the facts charged.

2) Unreasonable sentencing

The sentence of the court below against the defendant is too unhued and unreasonable.

2. Determination

A. Part of the defendant's case

1) Ex officio determination on the guilty portion of the Defendant case

Article 56(1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, which was amended by Act No. 15352, Jan. 16, 2018; and enacted from July 17, 2018, Article 56(1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, where a court issues a sentence or medical treatment and custody for a sex offense, it shall, in the same time as a judgment on a sex offense case where a person who was sentenced to a punishment for a sex offense against a child, juvenile, or adult, operates an institution related to children and juveniles, or is unable to provide employment or actual labor to an institution related to children and juveniles for a certain period not exceeding 10 years: Provided, That where the risk of recidivism is remarkably low, or where it is deemed that there is any special reason not to restrict employment, the court below’s order to restrict employment should not be sentenced to the above amendment of Article 3 of the Act on the Protection of Children and Juveniles against Sexual Abuse.

Of the judgment below, the guilty part of the defendant's case is reversed ex officio, but the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court.

2) Judgment on the mistake of facts and misapprehension of legal principles by the defendant

A) The judgment of the court below

In full view of the following circumstances acknowledged by the evidence duly admitted and investigated, the lower court determined that the Defendant, by force, committed sexual intercourse with the victim who is a child or juvenile and committed the act of similarity to the victim, without any reasonable doubt.

① At the time of entering the Defendant’s residence, the victim was a student who was enrolled in middle school 15 years old at 15 years old, and was in a state where there was no salvous place outside the Defendant’s residence to protect and rear the victim. In addition to the child’s father who was refused to protect and rear the victim, only the Defendant and his wife were the sole protective and rearer of the victim who was able to believe and be able to protect the victim.

(2) A victim clearly states his/her behavior that the defendant had in sexual intercourse with the victim, physical strength taken by two people, content and degree of the personal history of the defendant's use, content and degree of the victim's resistance to the defendant, and the pressure of the victim, etc., and has no motive or reason to make a false statement to the victim.

③ There was a profound difference between the Defendant and the victim in age, gender, and physical conditions, and the Defendant, as the sole guardian of the victim, actually plays the same role as the parent. Therefore, when the Defendant went to commit the instant crime, it seems that it was not easy for the victim to physically refuse the instant crime.

④ Other incidental circumstances, such as the victim’s usual speech and behavior, attitude, etc., cited by the defendant in order to avoid the credibility of the victim’s statement, are deemed to constitute a natural phenomenon of the defendant, who is a protector living together for a long time, and does not affect the credibility of the victim’s statement.

B) The judgment of this Court

In light of the following circumstances acknowledged by the lower court and the evidence duly adopted and investigated by this court, the lower court’s aforementioned determination is justifiable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the Defendant. The Defendant’s misunderstanding of facts and misunderstanding of legal principles are without merit.

(1) When the victim was hospitalized at a hospital from April 2016 to June 2016, 2016, the victim’s conversationd with the victim by dividing it by the victim’s interview with the victim was said to have suffered sexual assault from the Defendant at the investigative agency, but later, the victim told the Defendant to the effect that he had sexual intercourse with the Defendant by good faith (Evidence No. 58-59 pages). However, in light of the following various circumstances, the victim’s statement does not interfere with the recognition of credibility of the victim’s statement because it is difficult to accept the statement as it is.

① While making the above statements, the victim stated that “I am as if I would like to have the burden on the Defendant to demand harshness or sexual intercourse after the discharge of the victim” (No. 60 pages of evidence records). Even if I am the victim’s statement, it is difficult to understand that I would like to bear the sexual intercourse with the Defendant from any point of time without any special reasons, while I am able to bear the sexual intercourse with the Defendant.

② Around October 2016, the Defendant stated that “the victim was fit to see that Doggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggs)..” (whichgggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggn).).).).).

According to the recording of the victim's telephone statement dated April 9, 2018 (Evidence 4, which was submitted by the original counsel), it was investigated by the police and submitted to the police at the police site, and there is no indication in the protocol. Furthermore, from 72 pages of the investigation record, the victim's statement that was not submitted by the defendant as evidence begins, and the victim did not receive the assistance of the public defender in the initial police investigation, and there was no confirmation of the victim's public defender's notification and application (see, e.g., steam record 12 pages) after the stenographic record. Thus, in light of the fact that it appears that the victim's public defender's notification and application confirmation were prepared at the time of the investigation corresponding to the above statement, and that the documents stated by the public prosecutor during the court of the original trial were not submitted as evidence for 93 pages of the investigation record, it seems that the documents submitted by the defendant were bound to the same location as the statement. Accordingly, it is difficult to believe the contents of the conversation between the victim and the victim.

④ With respect to the question of whether the victim stated that “the victim was forced to do so, rather than by the Defendant’s answer,” at the court of the trial, the victim made a statement to the effect that he did not speak as the content of the “0 statement” (10-11 pages of the record of the examination of the witness at the court of the first instance). The victim made a statement to the effect that “the victim did not know that he was sexual assault before being hospitalized or reported to the hospital, and that he was able to do so.” The victim made a false statement to the effect that he did not speak as the content of the witness at the court of the first instance (10-41 pages of the record of the examination of the witness at the court of the first instance). The victim made a statement to the effect that he did not know that he was sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually sexually.

⑤ Since the victim and the hospital were under medical treatment at the time of the day, it seems that there is a possibility that the victim made a statement by hearing the horses due to the absence of any other place outside the Defendant’s home, or by making a mistake in interpreting the horses or by unrefusing some parts of the horses.

(2) From January 2015 to October 2016, WW, who resided with the victim’s home from around January 2015 to around October 2016, stated to the effect that W, at the trial court, had a sexual intercourse with the victim as well as the Defendant, was viewed as a male and female relationship, not just between the victim and the Defendant.

However, in light of the following circumstances, W’s statement is also difficult to believe.

① At the court of the trial, W made a statement that “as to the reasons why the Defendant and the victim appear to be in a male and female relationship, the action would have been committed, and that the Defendant and the victim would have refused to do so.” However, as to the actions of the Defendant and the victim, W made a statement that she was aware of or did not seem to have a fright at the time of entering into a frightdy relationship, W was able to do so, or kis at the time of entering into a frighty relationship.” (15,21-23 pages of the record of the examination of the witness in the trial as to W. Even according to W’s statement, there is no action or appearance between the Defendant and the victim that can be seen as a male and female relationship, so W seems to have been merely a subjective evaluation.

Furthermore, even if the defendant and the victim submitted to the purport that they are in a personal relationship with the defendant and the victim until they are in a trial, they do not seem to have divided conversations between the defendant and the victim as a male and female relationship with the victim, except for the phrase "voluntary viewing between the guardian and the ward".

② W seems to have caused the Defendant to feel out of the mind that the Defendant and the victim were well living, and the relationship with the victim was omitted, and first, the Defendant’s house was frightened (14-16, 20-23 pages). In that sense, W was highly likely to make an unfavorable statement against the victim. This attitude was also revealed in the part that the victim did not ask the victim about the part of the sexual assault at the time of being hospitalized at the hospital around April 2016, but it was well known that the victim reported sexual assault damage to the Defendant at the time of being hospitalized (16-17, 19 pages of the examination of the witness of the trial court as to W), while considering that the victim did not ask the victim about the part (16-17, 19 pages).

③ As seen earlier, the victim was hospitalized in the hospital from April 2016 to June 2016, and then did not have to go to the house of the Defendant. However, in an atmosphere where he does not believe himself, it appears to the purport that he was sexual intercourse with the Defendant by good faith to return to the Defendant’s home, and W is considered to be merely a victim’s speech.

(3) The Defendant and his defense counsel asserted to the effect that the date indicated as “p” or “N” on the Defendant’s daily recording (Evidence Nos. 188-244) does not necessarily mean the date on which the Defendant had sexual intercourse with the victim, including some day of self-defense. However, in light of the following circumstances, the date indicated as “p” or “N” appears to have sexual intercourse with the victim, and the Defendant appears to have sexual intercourse with the victim or indecent act even on the date on which it was not indicated on the day of the recording.

① In light of the fact that the victim was in a state in which the victim was not submitted to an investigation agency at the time when the investigative agency made a statement of damage, and that the victim was aware that the defendant was involved in the sexual intercourse in the trial court at the time of the trial court, but that it was never known that the date of sexual intercourse was written at all (9 pages of the record of the examination of the witness C at the trial court), etc., the victim did not appear to have made a statement on the basis of the above day-book at the time when the investigative agency made

② From among the facts of damage the victim stated in the judgment of the court, the crime described in the attached Table 3 to 6, 12, 19, 30, 34, 45, and 52 was not indicated in the Defendant’s daily record “P” or “N” (Evidence records 190, 192-194, 197, 201, 209-210, 230, 244). However, at the court of the party, the victim stated that he/she had sexual intercourse on 3 to 6 occasions a week except on Sundays for the Defendant’s week (9 pages of examination of witness C), and at the investigation agency, the victim stated that he/she had sexual intercourse on 200 days prior to the Defendant’s oral record or on 4 days prior to the Defendant’s oral record or on 2015, the victim did not have sexual intercourse on 3 to 4 times a week prior to the Defendant’s oral record or on 4 days before the Defendant’s oral record.

③ In the second investigation conducted by the prosecution, the Defendant made a statement to the effect that the date of sexual intercourse with the victim was written on the day the “p” or “N” was written on the Defendant’s day, and that there was an absence of indication (Evidence No. 402-403 pages). The Defendant began to argue to the effect that some of the dates stated in the “p” or “N” on the Defendant’s day before the third investigation by the prosecution was the day of self-defense. It is difficult to understand that the Defendant’s failure to memory was the day of self-defense, and that it was difficult for the Defendant to simply record the day of his self-defense as of December 27, 2015, and that it was difficult for the Defendant to believe that the Defendant and his defense counsel did not have sexual intercourse with the victim for a long time on October 30, 2016 (Evidence No. 1471, May 4, 2016).

(⑤) 피고인과 변호인은 '고', 'p', '' 중 단순히 오타로 입력된 부분들이 있다는 취지로 주장한다. 그러나 위 일기장 내용 중 2015. 2. 14.자에 표시된 'ㅍ'은 "X"인데, 이부분만 보더라도 키보드 자판의 위치에 비추어 오타로 '고'을 입력하였다고 보기 어렵다. 위 일기장 중 2015. 2. 16.자 기재에는 ''이 오타라고 주장하면서도 그날 피해자와 성관계가 있었다고 하여 주장 자체로 모순되기도 한다. 또한 'p'와 '네'라고 기재된 부분이 오타라거나 'p'가 사실은 자위행위를 한 날을 표시한 것이라는 취지의 주장 부분은 결국 피고인이 그날 피해자와 성관계를 하지 않았다며 이 부분 기재가 오타이거나 다른 의미를 가진다고 주장하는 것에 불과한데, 'p'와 'ㅔ'가 키보드 자판에서 같은 위치에 있는 점, 'ㅔ(p 포함)'의 키보드 자판상 위치는 앞에 기재된 글자를 입력하기 위해 누르는 키보드 자판과 떨어져 있어 오타 입력을 상정하기 어려운 점 등에 비추어 그 설득력이 떨어진다. 피고인과 변호인의 위 주장은 받아들이기 어렵다.

④ The Defendant and his defense counsel asserted to the effect that “p” is neither a meaning of sexual relationship nor a mistake in that it is impossible to record in advance the fact that a victim had sexual intercourse at least four hours prior to April 17, 2015, when a single entry was made on April 17, 2015.

However, on April 17, 2015, the victim sent a text message to the defendant on April 19:13, 2015, that "the victim has been in the house" from the content of the conversation between the victim and the defendant submitted by the defense counsel at the trial (the reference materials submitted by the defense counsel at the trial and the defendant divided by R. 659 parts) and the content of April 17, 2015 in the day-to-day class, "the victim is in the house, and is in the rest." In light of the fact that "the victim is in the house, and you are in the house." The victim does not seem to have a considerable difference from the actual hours, such as the time when the defendant prepared the day-to-day class, etc. Therefore, the above argument by the defendant and the defense counsel on the premise that the time-to-day class preparation, etc. is not accepted.

(No. 13, 14, 15, 18, 24 through 28, and 51 of the attached Table 1 of the lower judgment’s judgment, the Defendant and his defense counsel asserted to the effect that there is a difference between the time, place, or situation during which the sexual intercourse with the victim was made and the facts charged in this part of this part are recorded. However, the grounds for the argument are merely the only fact of the Defendant’s memory. However, it is difficult to understand the fact that the Defendant was unable to associate with the victim even at the time of the examination of the witness in the case where the Defendant had long occurred. The Defendant and his defense counsel do not accept the above assertion.

8) On June 24, 2015, which is the day of the crime committed in accordance with the list 21 of the judgment below, the defendant and his defense counsel asserted to the effect that the victim did not take the victim just before the school and bank around 10:24 of the same day, and that the date stated in this part of the facts charged was not identical with the defendant. However, even if the defendant started to do so at around 10:24, there is no doubt that the victim did not take the part of the conversation (such as reference materials submitted by the defense counsel at the trial) divided by the victim, the defendant and his wife, and the defendant's wife, and it seems that the victim would go to the school. The victim's listing is likely to be awarded by the above institution, and the victim appears to have reached the defendant's wife, and the victim would have been expected to go to Y at the time close to the bank's business, and the victim would not interfere with the defendant's sexual intercourse with the defendant's defense counsel's statement in this part of the charges.

② Furthermore, the Defendant and his defense counsel asserted that the form of a victim who was not a sexual assault victim is an ordinary act that may normally take place by female students in the pertinent age group. Furthermore, the Defendant and his defense counsel asserted that the form of the victim expressed in R text messages sent by the victim to the Defendant after the Defendant’s sexual intercourse, indecent act or similar act does not constitute a general sexual assault victim. However, it appears that it was difficult for the Defendant to send a message to criticize and attack the Defendant from the perspective of the victim who was receiving the Defendant’s protection and emotional care, and that the victim’s speech, expressed in the said R message, seems to be ordinarily used by female students in the pertinent age group. In light of the fact that the victim’s speech, expressed in the said R message, appears to be ordinarily used by them, it does not interfere with the fact that the victim sent R text messages to the Defendant. The above assertion also does not interfere with the recognition of the instant charges.

(4) Even if the Defendant asserted that he had sexual intercourse with the victim, he would have received a signal with the victim’s visual light, etc. or left a natural sexual relationship, and did not present any circumstances to understand whether the victim had sexual intercourse with the victim (Evidence Records 394, 396-397, 444-446, 450-451). Furthermore, even though the Defendant appeared in the court of the first instance and testified on the fact of damage, it is difficult to view that the Defendant did not completely cross-examine the victim’s sexual intercourse with the victim at the time of the examination of the witness, on the grounds that the victim’s sexual intercourse was not recorded until December 7, 2017, after the conclusion of the pleadings at the court of the first instance.

(5) The Defendant and his defense counsel asserts to the effect that the Defendant and his defense counsel set forth an agreement by demanding excessive agreement between the victim and pressure the Defendant, etc. However, the victim’s demand asserted by the Defendant and his defense counsel stated that “the victim’s demand is KRW 50 million or has no idea to agree.” In light of the fact that the amount required is an amount difficult to accept in reality, it may be deemed that the Defendant actively expressed the Defendant’s intent that the victim would not have any idea to agree, and it may be deemed that the victim sent R text messages to the Defendant’s wife at the time when several months have passed after the above mentioned, and it is difficult to view that the victim made a false statement from the beginning to demand excessive agreement from the Defendant. The Defendant and the defense counsel’s aforementioned assertion is rejected.

3) Judgment on the Prosecutor’s misunderstanding of facts

A) The judgment of the court below

On October 8, 2014, at around 19:00 on October 8, 2014, the lower court asserted that there was no sexual contact with the Defendant, and that there was no other evidence to acknowledge that the Defendant committed an indecent act by force against the victim by force or by force at the time and time and place indicated in the annexed Table 1, 2, and 3:00 on November 14, 2014.

B) The judgment of this Court

원심과 이 법원이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사실과 사정들을 종합하면, 피고인이 2014. 10. 8. 19:00경 잠시 잠이 든 피해자의 입술에 입을 맞추는 등 피해자를 준강제추행하고, 2014. 11. 14. 23:00경 피해자의 귓불과 가슴을 만지고, 피고인의 혀로 피해자의 귓불과 가슴 부위를 수회 세게 빨아 위력으로 피해자를 추행하였다는 이 부분 공소사실이 인정되므로, 이에 대하여 무죄로 판단한 원심판결에는 사실오인의 위법이 있다. 검사의 사실오인 주장은 이유 있다.

(1) With respect to indecent acts committed on October 8, 2014, the Defendant was appointed as E apartment F (hereinafter referred to as “E apartment”) around October 1, 2014. The victim was living in the Defendant’s E apartment and the victim’s residence (Evidence Record 21, 188, 392 pages) from around that time to November 1, 2014 (Evidence Record 21, 188, 392 pages).

② The date of October 8, 2014 at the court of the trial stated to the effect that an indecent act like this part of the facts charged was committed at that time (5-6 pages of the record of the examination of witness C of the trial court). The investigative agency also made a statement to the effect that there was an indecent act like this part of the facts charged (5-6 pages of the record of the examination of witness C of the trial court) and that it was clearly stated that the Defendant was forced to be able to be able to be able to be able to be able to locked even after the completion of the middle examination of the second semester, and that the Defendant was able to be able to be able to be able to be able to dickly

③ As examined in the judgment on the argument of mistake of facts and misapprehension of legal principles as seen earlier, the victim’s statement is reliable, and the Defendant’s act of sexual intercourse with the victim was not entirely written in the Defendant’s daily keeping book, and the Defendant’s assertion that the Defendant and his defense counsel drinking together with the victim’s child-friendly AA cannot be deemed to be contrary to the circumstances that the victim spawnd with the Defendant. In light of the fact that the Defendant, as indicated in this part of the facts charged, deemed that the Defendant spawndddd with the victim’s spawn as stated in this part of the facts charged, was found to have been in the state of mental disorder or non-performance of obligation, such as the Defendant

(2) As to the indecent act committed on November 14, 2014

① The victim began to live only in E-House from the early November 2014 (Evidence Records 18,188 pages).

② The victim stated to the effect that the date of “the date of November 1, 2014” was not memory at the court of the trial, but at that time, an indecent act like this part of the facts charged was committed. The victim stated to the effect that, before entering the E apartment, it was once before entering the apartment, and that, even after that, on December 2014, sexual indecent act was memory twice before sexual intercourse was committed (6,8-9 pages of the examination of the witness C of the trial).

③ The victim stated at an investigative agency that "the defendant's wife was frighten and fright at night on the day when she was frighten and her mother was frighten, and the chest was frighten (it is impossible to be frighten) at all times, and the same time, even if she was frighted, she shall not be inside the first experience test." It was 12 months for sexual intercourse under the first power. The victim stated that the first sexual intercourse under the power was in December. (Evidence Record 16-17) and immediately after the statement that she was frighten in the defendant's house on November 2014, she was frighten in the investigative agency, and she was frighten and she was frighten and she was frighten and she was frighten and she was frighten and her chestd before the victim's chest was frighten and she was frighted by the investigative agency on the second day after the victim's statement.

4) 앞서 피고인의 사실오인 및 법리오해 주장에 관한 판단에서 살펴본 바와 같이 피해자의 진술은 신빙성이 있고, 피고인이 피해자에게 한 성행위가 피고인의 일기장에 전부 기재되어 있었던 것은 아닌 점 등에 비추어, 피고인은 이 부분 공소사실 기재와 같이 손으로 피해자의 귓불과 가슴을 만지고 혀로 피해자의 귓불과 가슴을 빠는 행위를 한 사실이 인정되고, 피고인이 자연스럽게 피해자와 상호 동의하에 위 행위로 나아갔을 것으로 추단할 만한 사정이 전혀 보이지 않는 점, 피고인과 피해자의 관계, 당시 피해자가 처한 상황 등에 비추어 피해자는 피고인의 성행위에 저항할 것을 기대하기 어려운 지위에 있었고, 피고인도 이를 잘 알면서 성행위에 나아간 것으로 보이므로 피고인은 위력으로 피해자를 추행하였다고 봄이 타당하다.

B. Part of the case for attachment order

1) As seen earlier, insofar as the prosecutor’s assertion of mistake is well-grounded, the fact of claim recognized in the case of the request for attachment order does not change from the original judgment, and the illegality of the part concerning the Defendant’s case is also affected by the part regarding the request for attachment order, and the part regarding the request for attachment order among the lower judgment cannot be maintained as is (see, e.g., Supreme Court Decision 2010Do199, Feb. 10, 201).

However, the defendant's improper assertion about the attachment order is still subject to the judgment of this court, and this is examined.

2) The lower court determined that, in full view of the fact that the Defendant committed the instant crime against a victim who is a child or juvenile living at the home of the Defendant couple under the protection of the Defendant couple, and the Defendant’s instant crime was committed continuously and repeatedly over several years and six months, and the Defendant’s age, character and conduct, occupation and position, the background of the instant crime, circumstances after the crime, etc., the lower court recognized the risk of the Defendant’s recidivism of sexual crime and recidivism.

Examining the evidence duly admitted and examined by the court below, the above determination by the court below is justifiable. The defendant's improper assertion regarding the attachment order is without merit.

3. Conclusion

Of the judgment below, the guilty portion of the defendant's case has grounds for reversal ex officio as seen earlier, and the prosecutor's appeal as to the acquittal portion of the defendant's case has grounds for appeal among the judgment below, and the attachment order case among the judgment below is also reversed as seen above. Therefore, the judgment of the court below shall be reversed in accordance with Article 364 (2) and (6) of the Criminal Procedure Act and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, without examining the argument of unfair sentencing by the defendant and prosecutor

[Grounds for multi-use Judgment]

Criminal facts

From December 3, 2014 to April 28, 2017, the part of the lower judgment’s criminal facts, “the Defendant, including such part, committed or attempted to commit sexual intercourse with, or attempted to commit sexual intercourse with, the victim, who is a child or juvenile, on 50 occasions over 50 occasions, as indicated in the attached list of crimes, from around December 3, 2014 to around April 28, 2017,” is the same as the corresponding column of the lower judgment, except that “the Defendant, including the part, was committed by force, to have sexual intercourse with, or attempted to commit sexual intercourse with, the victim, who is a child or juvenile, by force over 52 times from around October 8, 2014 to around April 28, 2017,” and therefore, shall be cited as it is in accordance with Article 369 of the Criminal Procedure Act.

A person against whom a request to attach an attachment order was made, is recognized as having the risk of recommitting a sexual crime in full view of the background and method of the crime of this case, occupation and position, etc., of a victim under 19 years of age, as stated in the judgment of the court below.

Summary of Evidence

In addition, the summary of the evidence of the judgment of the court below is the same as the corresponding column of the judgment of the court below, except for adding "1. witness C's legal statement and partial statement of the witness W" and "1. Criminal investigation report (applicable provisions to a suspect and report of the list of crimes)" to the summary of the evidence. Thus, they are cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 7(4) and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 299 of the Criminal Act, Article 7(5) and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the occupation of indecent act by force, the choice of imprisonment), Article 7(5) and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the occupation of sexual intercourse by force, the choice of limited imprisonment), Article 7(5) and 7(2)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse (the occupation of similarity by force), Article 7(6), (5) and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the attempted sexual intercourse by force, the selection of limited imprisonment) 1.

Article 37 (former part), Article 38 (1) 2, Article 50 of the Criminal Act, and Article 50 (1) 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse, among the concurrent crimes prescribed by the Act on the Protection of Children and Juveniles against Sexual Abuse (Sexual Intercourse such as Fraudulent Means, etc.) 1. The proviso to Article 21 (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the proviso to Article 21 (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, which impose an order to complete a sexual assault treatment program on a defendant pursuant to Article 9-2 (1) 4 of the Act on Probation and Electronic Monitoring

1. Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Jan. 16, 2018)

1. Exemption from an order for disclosure and notification;

The proviso of Article 49(1) and the proviso of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the crime of this case is not a crime against unspecified victims, but a crime of this case is not committed by the defendant, and the defendant has no record of having committed the same kind of crime, the registration of personal information of the defendant, employment restriction order and attachment order alone seems to have the effect of preventing recidivism to a certain extent. In addition, considering the defendant's age, family environment, social relationship, the background and contents of the crime of this case, the details and anticipated side effects of the crime of this case due to the disclosure notification order, and the prevention effect of sexual crimes that can be achieved thereby, there are special circumstances where disclosure

1. Issuing an order to attach an electronic tracking device and matters to be observed;

Article 5(1)4, Article 9(1)1, proviso to Article 9(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (the minimum sentence shall be aggravated because the victim is under the age of 19), Article 9-2(1)1, Article 9-2(1)2, 3, and 4 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, Article 9-2(1)1, Article 9-2(1)3, and 2-2

2. Scope of recommendations according to the sentencing criteria;

(a) Crimes of sexual intercourse in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

[Determination of Punishment] Type 2 of the rape (subject to 13 years of age or older) for sexual crimes (Juvenile Rape is included in this Type)

[Special Exemplary] Victims (Aggravated Elements) vulnerable to a crime

[Scope of Recommendation] Six to nine years of imprisonment (Aggravated Field)

(b) The scope of final sentence according to the standards for handling multiple crimes: 6 to 16 years (in the case of concurrent crimes, 9 years, which is the maximum of the scope of punishment for the first and second concurrent crimes, 1/2 of 4 to 6 months, and 1/3 of the maximum of the scope of punishment for the second concurrent crimes).

3. The crime of this case by a sentence of sentence is committed against a victim who is a child or juvenile living in his/her place of residence under the protection and custody of the defendant, and has committed a sexual crime continuously and repeatedly over a half year and six months, and the nature of the crime is extremely poor. In particular, the defendant committed the crime of this case by taking advantage of the situation where the victim was aware of his/her father's relationship with his/her father as the victim aggravated, and the victim was committed with his/her emotional distress. The victim was at the place where he/she was constantly damaged by the defendant while he/she was under the circumstances where he/she did not have a place where he/she would be well aware of the defendant, who is the only protection and custody, even though he/she was actually the only protection and custody of the victim. Thus, the size of the victim's sexual humiliation, mental suffering, distribution, and self-harm cannot be measured. Nevertheless, the defendant was aware of the fact that the victim was a sexual experience in the past, or was a good relationship with the victim, and even made efforts to criticize or criticize the victim.

However, considering the overall circumstances favorable to the defendant that the defendant had no previous criminal record, the defendant shall be sentenced to punishment as set forth in the order, comprehensively taking into account the following factors: the defendant's age, character and conduct, environment, family relationship, the course and method of the crime of this case, and the circumstances after the crime.

Where a conviction becomes final and conclusive on each criminal fact in the judgment that is subject to registration and submission of personal information, the defendant is subject to registration of personal information in accordance with Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and the defendant is obligated to submit personal information to the competent agency pursuant to Article 43

For the presiding judge and judge;

Judges Hong Sung-sung

Judges Gin-dong

1) The Defendant stated in the second investigation by the Prosecutor’s Office that the victim was into a Emore apartment on October 2014, but the evidence was recorded 394);

On March 2014, a day-to-day prepared by the defendant, the victim stated to the effect that the victim sleeps in the defendant's house at the defendant's house, and that is that:

After all, there is a statement to the effect that the victim will be engaged in daily life together with the victim (Evidence Records 188 pages).

From October 3, 2014 to October 3, 2014, E apartment and the victim seems to have visited the existing residence.

2) Both accused cases under Article 9(8) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders

An appeal shall be deemed to have been filed even with respect to a case for which an attachment order is requested.