Defendant and person subject to medical treatment and custody, person subject to request for attachment order, and person subject to medical treatment order;

Kim Jong-Un (Public Prosecution) and Lee Jong-won (Public Trial)

Attorney Kim Tae-hun (Korean National Election)

A defendant shall be punished by imprisonment for seven years.

A candidate for medical treatment and custody shall be punished by medical treatment and custody.

To the person subject to the request for attachment order, the attachment of an electronic tracking device shall be ordered for 20 years.

Matters to be observed as stated in the attached Form shall be imposed on the person requested to attach an attachment order.

The medical treatment order recipient shall be ordered to perform pharmacologic treatment for sexual impulses for five years.

【Criminal Power】

On February 24, 1994, the defendant and the respondent for a medical treatment and custody order, the respondent for an attachment order, and the respondent for a medical treatment and custody order (hereinafter referred to as the "defendant") were sentenced to four years of imprisonment for rape, injury, etc. at the Changwon District Court on December 13, 1997 and completed the execution of the sentence at the Busan Prison on March 18, 2004, and on May 28, 2004, the above judgment became final and conclusive on May 28, 2004.

【Criminal Facts】

1. On July 11, 2003, the Defendant: (a) around 16:20 on July 11, 2003, at the Dong-gu, Daejeon ( Address 1 omitted); (b) at the home of Nonindicted Party 2 (Min, 14 years old); and (c) at the home of the victim Nonindicted Party 2 (Min, 14 years old); and (d) at the victim’s home, the Defendant had the victim open the door door to the victim’s door, saying “I have opened the door, so far as I have opened the door.”

The defendant, at one hand, led the victim to the victim's face and intrudes into the victim's house with the victim's face, led the victim as a way to do so, blicked over the victim's hand, blicked the victim's hand, blicked the victim's resistance, blicked the victim's hand, and led the victim to the abandoned house located adjacent to the victim's house.

After continuing to go beyond the victim's ways, the Defendant: (a) threatened the victim with the victim "I know that I will attend any school, I know that I will know that I will attend the school, and if I know that I will end several times, I would know that I would end, I would like to kill I will me will not report you will me we will to do so, and if you will do so, I would like to go off all the half panty and panty." (b) the victim was suffering from all the part of the victim, and had sexual intercourse once with the victim.

Accordingly, the defendant carried dangerous objects and raped the victim.

2. At around 15:30 on September 23, 2003, the Defendant: (a) committed sexual intercourse with the victim Nonindicted Party 1 (the 11-year old age), who was located in Msan-si Member ( Address 2 omitted); (b) had the victim’s family by drinking the victim to rape; and (c) had the victim’s family members checked into the victim’s house; and (d) had the victim’s hand and spanty, which were located in his clothes, sealed the victim’s resistance; and (d) had the victim exceeded all his hand and panty tyty; and (e) had the victim sexual intercourse once.

【Facts of Medical Treatment and Custody】

The Defendant needs to commit sexual crimes against children and juveniles and receive medical treatment at a medical treatment and custody facility, as stated in the facts constituting a crime, as a mentally disabled person with a sexual intercourse, such as sexual dysia, and there is a risk of recidivism.

【Fact of Grounds for Attachment】

The Defendant, as stated in the facts constituting a crime in the judgment, was sentenced to imprisonment for a sex crime and again committed a sex crime within ten years after the completion of the execution of the sentence, and committed a sex crime on two or more occasions, and the habit is recognized as such. A sex crime committed against a person under the age of 16 is likely to recommit a sex crime.

【Facts of Grounds for Medical Treatment Orders】

The Defendant constitutes a person with a mental disability with a sexual disorder, such as sexual dysology, and is a person with sexual intercourse who has been proved to be unable to control his/her act due to sexual disorder by a mental health specialist, and has committed a sexual crime against children and juveniles as indicated in the judgment of the lower court, and is likely to recommit a sexual crime.

1. Partial statement of the defendant;

1. Each legal statement of the witness, Nonindicted 2 and Nonindicted 4

1. Each police protocol on Nonindicted 2 and Nonindicted 4

1. Each request for appraisal, each request for appraisal, and each written appraisal;

1. Requests for verification of the details, etc. of the processing of cases, etc. following the verification of the DNA conformity, list of DNA conformity persons, verification of the processing of cases related to the DNA conformity persons, status of compliance with the results of comparison with the DNA, notification of the results of search of DNA identification information, and notification of the results of search of DNA identification information database;

1. An investigation report (not complying with the statement of a victim), an investigation report (not required to request a DNA re-examination), an investigation intelligence report, an outbreak report, an internal investigation report (Attachment to a written confirmation of medical treatment of a victim's hospital), a medical certificate, and a medical record;

1. On-site inspection, copies of the logbooks, investigation reports (at the place of crime and the guidance of the residence of the suspect at the time of crime), and guidance;

1. Records before and after judgment: Records of personal identification and confinement, investigation reports (formers and attachment of written judgments), written judgments, residents, and criminal records;

1. The need to treat the victims of a sexual crime, the risks of recidivism, and sexual intercourse: (1) the defendant himself/herself had been sentenced to four years of imprisonment with prison labor due to rape, etc. committed by the victims of the sexual crime; (2) his/her own risk of sexual assault; (3) the defendant was found to have been able to inquire into the victims of the sexual crime and his/her sexual assault before and after his/her request for an attachment order; and (4) the defendant had been sentenced to more than 11 years of age and 12 years of age and more than 12 years of age to commit rape; and (3) his/her sexual assault and rape at his/her own time during 192; and (4) the defendant had been sentenced to more than 10 years of age and 12 years of age and more than 10 years of age to commit rape; and (4) the defendant's sexual assault and rape at his/her own risk; and (2) the victim's sexual assault and rape were found to have been raped by the Act.

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

Article 4 of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 10258, Apr. 15, 2010); Article 6 (1) of the former Act on the Punishment, etc. of Sexual Crimes; Article 6 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 10258, Apr. 15, 2010; hereinafter the same shall apply); Article 297 of the Criminal Act [Special Rape; hereinafter the same shall apply]; Article 42 of the Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply]; Article 5 (1) of the former Criminal Act; Articles 319 (1) and 297 of the Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply];

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act (mutual between each of the crimes in this case and the crimes in violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, etc.)

1. Aggravation for concurrent crimes;

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Punishment of Sexual Crimes, Protection of Victims, etc. (Special Rape, etc.) with heavier Crimes]

1. Medical treatment and custody;

Articles 12 and 2(1)3 of the Medical Treatment and Custody Act

1. An attachment order;

Articles 9(1)1, 5(1)1, 5(1)3, and 4 of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 11558, Dec. 18, 2012; hereinafter the same shall apply)

1. Imposition of obligations;

Article 9-2 (1) 2, 3, and 4 of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

1. Medical treatment orders;

Articles 8(1) and 4(1) of the Act on Pharmacologic Treatment of Sexual Impulses by Sexual Offenders

1. Summary of the assertion

A. Although the Defendant had raped the victim, the Defendant did not rape the victim by carrying a knife as stated in paragraph (1) of the crime in the judgment at the time.

B. The Defendant was at the time of birth in the military, as stated in paragraph (2) of the criminal facts stated in the judgment, and did not commit rape as stated in paragraph (2) of the criminal facts in the judgment (hereinafter “instant crime 2”).

C. Preliminaryly, around 2003, at the time of investigating the case, including the Defendant’s violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. (Bodily Injury resulting from Rape, etc.), the investigative agency had already known the Defendant of the crime No. 2 at the time of the investigation, but omitted from the subject of prosecution, and thereafter had the Defendant instituted a prosecution again at the time of the expiration of the term of punishment. This constitutes an abuse of the right of prosecution by allowing the Defendant to suffer disadvantage at the same time from

D. Each of the instant crimes was committed upon expiration of the statute of limitations.

2. Determination

A. As to the assertion that there was no fact that the defendant threatened the victim non-indicted 2 in a knife as stated in the criminal facts No. 1 of the judgment

살피건대, 피해자 공소외 2는 수사기관에서부터 이 법정에 이르기까지 일관하여, “범행 당시 피고인이 피해자의 집 안으로 침입하여 피해자를 방안으로 끌고 가 넥타이로 양 손목을 뒤로 묶은 다음 바로 부엌으로 가서 식칼을 가지고 와 피해자를 협박하였다. 당시 피고인이 넥타이로 손을 묶고 이불로 얼굴을 감쌌던 것 같으나, 피해자는 피고인이 피해자의 손을 넥타이로 묶은 후 부엌으로 가는 것을 보았고 부엌 싱크대 문이 열리는 소리를 들었으며 그 후 피고인이 피해자 옆으로 와 직접 식칼을 보여주었기 때문에 범행 당시 사용된 식칼이 피해자의 집에 있던 식칼인 것을 알았다. 피고인은 한 손에 식칼을 들고 피해자에게 와서 피해자를 끌고 부엌 쪽으로 갔는데 그때 피해자의 동생이 현관문을 두드리며 피해자를 부르자 피고인이 식칼을 피해자의 옆구리 쪽에 갖다 대면서 조용히 하고 만약 소리를 지르면 피해자와 동생을 다 죽여버리겠다고 협박하였다. 그 후 피고인은 식칼을 피해자의 등 쪽에 대고 부엌문을 통해 피해자의 집 옆에 있는 빈집으로 피해자를 끌고 갔다. 피고인은 빈집에서 피해자 옆에 식칼을 두고 성폭행을 하였고, 당시 식칼은 피고인이 언제든지 손으로 잡을 수 있도록 피해자의 왼편 옆구리 부위 바닥에 놓아두었다.”라고 진술하여, 피해자가 식칼을 보게 된 경위, 피고인이 식칼로 위협한 부위와 협박 내용, 강간 당시의 상황에 대한 중요 부분을 구체적이고 일관되게 진술하고 있고, 위 진술 내용은 실제로 발생한 사실이 아니거나 경험해보지 않았다면 진술할 수 없는 매우 상세한 내용으로서 피해자의 진술 경위, 진술 태도, 내용 등에 비추어 신빙성이 높다. 이러한 피해자의 진술과 그 밖의 증거들에 의하여 인정되는 사건 당시의 정황에 비추어 보면, 피고인이 판시 범죄사실 제1항 기재와 같이 위험한 물건인 식칼로 피해자를 협박하고 위 식칼을 지닌 채 피해자를 강간한 사실을 인정할 수 있다. 따라서 피고인 및 변호인의 이 부분 주장은 받아들이지 않는다.

B. As to the assertion that the defendant did not commit the crime No. 2 of this case

In full view of the credibility of the results of genetic assessment, the details of the instant damage report, the details of the victim’s treatment, and Nonindicted 4’s statements, etc., based on the evidence adopted and examined by the court, the following results of the genetic assessment that the gene type detected in the victim’s quality corresponds to the Defendant’s NA, it can be sufficiently recognized that the Defendant committed the instant crime No. 2. Accordingly, this part of the assertion by the Defendant and the defense counsel is rejected.

(i) genetic appraisal results and their reliability;

① The results of genetic testing through DNA analysis, which is a scientific evidence method, are highly reliable insofar as an appraiser with sufficient professional knowledge and experience conducts an appraisal using generally established standard testing techniques with respect to adequate appraisal data and the analysis of the results is recognized to have been conducted through appropriate procedures (see, e.g., Supreme Court Decision 2007Do588, Sept. 20, 2007).

② On September 23, 2003, immediately after the instant case, Nonindicted Party 1 reported the instant damage directly to 112, on September 23, 2003, and immediately collected the content, etc. inside the body of the victim from the parent of the victim to the hospital around September 16, 200. Nonindicted Party 3, who belongs to the Msandong Police Station, requested the National Institute of Scientific Investigation for the appraisal by removing the quality content, etc. of the said victim from the victim’s side.

③ As a result of the genetic test conducted by the National Institute of Scientific and Investigative Research, a sperm training reaction was conducted from the victim’s quality contents, and thereafter, the results of comparison with the DNA identification information database managed by the Supreme Prosecutors’ Office of Justice of the Republic of Korea on the gene type detected from the victim’s quality contents, the above gene type was consistent with the Defendant’s DNA (the probability that a person other than the Defendant, among the Republic of Korea, has the same gene type x 6.33 x only one person per person). From the victim’s quality contents, another person’s gene type was not detected except the Defendant and the victim’s DNA.

④ In full view of the fact that no special circumstance exists to suspect any manipulation or error in the course of collecting appraisal data, including the nature and content of the victim, and no special circumstance exists to deem that the gene type detected from the aforementioned collected appraisal data did not undergo adequate procedures in the process of analyzing the gene type, etc., it can be trusted that the gene type detected from the quality content of the victim corresponds to the Defendant’s DNA.

2) The details of the report on damage, Nonindicted 4’s statements by witnesses, and the details of the victim’s treatment.

① On September 23, 2003, the victim Nonindicted 1 reported the instant damage directly to 112 on September 23, 2003, immediately after the instant case. Nonindicted 3 police station affiliated with the Mapo-dong Police Station, which was called out after receiving the victim’s report, investigated the field identification and surrounding search at the victim’s residence located in the Msan-si, Members of the Simsan-si, which is the scene of the crime, and Nonindicted 4, the victim’s father was under contact with the investigative agency.

② In this court, Nonindicted 4 stated, “The victim’s father, Nonindicted 4 arrived at the house after being contacted by the police box at the time of September 23, 2003. At the same time, the victim did not have the victim in the house, and the victim’s panty was set off off, and she was placed in the clothes, and his KON et al. was left far away from the floor. The victim’s new client was also seen as the offender’s new client, and ○○ Hospital received a fixed amount of money, etc. inside the victim’s quality.”

③ In fact, the medical records of the ○○ Hospital have been recorded on September 23, 2003, when the victim received medical treatment at the ○○ Hospital, which was on the day of the instant case. The medical records of the said victim include “presumed rape, and post-explosion and observation,” and are recorded as “presumptive rape and post-explosion and observation” against the victim.

3) There is no other evidence to prove the circumstance of the Defendant’s assertion, such as Alba, etc., and in this case, the Defendant’s sperm was detected from the quality content of the victim, which is only 11 years old (the date of February 13, 1993), in consideration of the victim’s age at the time of the instant case, the place where the case occurred, the situation before and after the instant case, the details of treatment of the victim on the day of the instant case, etc., it seems extremely low that the victim had sexual contact with the Defendant on the route other than the instant rape.

C. As to the assertion of abuse of power to prosecute

1) Even if a public prosecution was not instituted before the pronouncement of the judgment in the previous case and the defendant was at a disadvantage from being tried concurrently with related cases, if it cannot be viewed as an illegal act that significantly deviates from the prosecutor's discretionary power by arbitrarily exercising his/her discretionary power, such public prosecution cannot be deemed to have been instituted by abusing his/her authority (see Supreme Court Decision 98Do1273, Jul. 10, 1998, etc.).

2) According to the records, it is recognized that the Msan East Police Station received a reply of the results of genetic test by the National Scientific Investigation Institute that the gene type of a man discovered by the victim Nonindicted Party 1’s quality at the time of investigating the crime of this case in around 2003 is identical to that of a man discovered by rape in the Changbu Police Station in the Busan Northern Police Station and the Busan Northern Police Station.

However, the following circumstances acknowledged by the court's adopted and investigated evidence: (i) the aforementioned gene appraisal response only stated the above contents; (ii) the male gene type detected in the victim non-indicted 1's quality corresponds to the defendant's DNA; or (iii) the defendant was not identified as the defendant in each rape case under investigation by other investigative agencies; (iv) each investigative agency and the National Institute of Scientific Investigation only has information within its own jurisdiction; and (v) the investigative agency and the National Institute of Scientific Investigation did not properly conduct a business cooperation system, such as sharing DNA identification information between the investigative agency and the National Institute of Scientific Investigation; (iii) the investigative agency which investigated the second crime of this case did not have the right to prosecute the defendant at the same time after receiving a reply that the gene type found in the victim non-indicted 1's mass form corresponds to the defendant's gene type; and (v) the prosecutor did not have the right to prosecute the defendant at the same time to prosecute the crime of this case; and (v) the defendant did not appear to have been released from the prosecutor's judgment at the same time of this case.

D. As to the argument that the statute of limitations expired

Pursuant to Article 6(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof, the crime listed in paragraph (1) of the crime in the holding (hereinafter “instant crime”) is a 10-year term under Article 3 of the Addenda of the Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007) and Article 249(1)2 of the former Criminal Procedure Act (amended by Act No. 8730 of Dec. 21, 2007).

However, the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, which was wholly amended by Act No. 11556, Dec. 18, 2012, provides that the statute of limitations or the Special Provision on the initial date of the statute of limitations shall be established. Article 252(1) of the Criminal Procedure Act provides that “The statute of limitations of a sexual crime against a minor shall not apply to a sexual crime where the statute of limitations shall not apply to a person under 10 years of age, notwithstanding paragraphs (1) and (2) of the same Article, where any scientific evidence exists to prove the relevant crime, such as the minor's coming into force on the date when he/she reaches the age of majority (Article 21(1)), DNA (DN), and Article 249 through 253 of the Criminal Procedure Act (Article 252(1) of the Addenda to the said Act).” Article 252(1) of the Act provides that the statute of limitations shall not apply to a sexual crime not yet completed.

As to each of the facts charged in this case, it is apparent that the ten-year statute of limitations has not elapsed since the completion of each of the above crimes at the time of June 19, 2013, and as such, in the case of the crime No. 2, the application of the statute of limitations in accordance with Article 3 of the Addenda of the above Act and Article 21 (3) of the above Act is excluded. In the case of the crime No. 1, the statute of limitations has been extended by ten years pursuant to Article 3 of the Addenda of the above Act and Article 21 (2) of the above Act, and the statute of limitations has run from August 15, 2008 and Article 21 (1) of the Addenda of the above Act, since the statute of limitations has not yet expired on February 20, 2013, which is the date of the indictment in this case.

Therefore, this part of the defendant's assertion is rejected.

The Defendant was sentenced to 10 years of imprisonment on March 18, 2004 for sexual crimes committed between April 2003 and August 2004 and was sentenced to 10 years of imprisonment on May 28, 2004, and is currently under execution of the sentence in Busan Prison, and is subject to release on November 4, 2013. Each of the instant crimes is sexual crimes committed by the Defendant around July 2003 and around September, and is similar to the crime established in the above judgment and the crime committed in question, and the crime committed in question and the crime committed in question, the object and method of prosecution, and the response was received by the National Institute of Scientific Investigation at the time of the investigation into each of the above final judgment. Thus, if cooperation with each investigation agency, DNA identification information cooperation, etc. was smoothly conducted, it is possible for the Defendant to be exempted from punishment for the crime in this case and the crime in this case to return to society at the same time due to lack of working hours between investigation agencies at the time, and there was no possibility that the Defendant could have been exempted from punishment for 213 years of imprisonment.

However, each of the crimes of this case committed by the defendant in intrusion upon the victim non-indicted 2's residence, which led to rape of the victim by knifeing the victim's knife with a knife, which is a deadly weapon, and then intrudes upon the victim non-indicted 1's residence, and then rapes the victim's hand and appearance. The victims' age at the time of the case is merely 14 years and 11 years, and it is not very good for the crime to be committed in light of the background of the crime, the method of the crime, and the age of the victims. Considering that the defendant had been punished for the sexual crime against the victims of 12 years of age 194 and had been sentenced to punishment for rape, but it is hard to find that the defendant had suffered significant mental suffering and mental suffering from the victim's temporary rape and rape, and it seems that it is hard to cure the victim's considerable mental suffering.

The sentence shall be determined as per Disposition, taking into account such various circumstances, the age, character and conduct, environment, and circumstances after the crime, etc., as shown in the pleadings of this case.

[Attachment]

Judge Shin Jae-gu (Presiding Judge)