Defendant

Equitable

Attorney Lee J-jin (Korean)

A defendant shall be punished by imprisonment for five years.

Information on the accused shall be disclosed through an information and communications network for five years.

The request for the attachment order of this case is dismissed.

1. On September 2006, the Defendant: (a) allowed Nonindicted 1, his wife, Nonindicted 1, who was a friendship, to take the Defendant’s home in the Gwanak-gu Seoul Special Metropolitan City, to commit an indecent act against the victim by reporting the victim’s sexual desire to play at his home. (b) On September 1, 2006, the Defendant was willing to commit an indecent act by reporting the victim’s sexual desire to play at his home.

At around 22:00 on September 206, the defendant, at the above defendant's house on the date of Sep. 22, 2006, made indecent acts by compulsion of the victim by inserting the defendant's hand in the clothes of the victim who was diving with Nonindicted Party 1, and continuing to meet the victim's hand by inserting the victim's hand into the victim's panty.

2. The Defendant, at around 01:00 on October 1, 2006, engaged in indecent acts by force by force, at the same place as the above 1. Paragraph (1) above, by means of drinking milbling the victim’s milch chest and fry, in the same manner as the above 1.

3. At around 14:00 on the day of 2006, the Defendant, at the Defendant’s house of the Gwanak-gu Seoul Special Metropolitan City (number 1, number omitted), had Nonindicted Party 1 enter the house of the Defendant, followed Nonindicted Party 1 to rape the victim by using no means in the house, and by using the fact that there is no room in the house, provided an adult broadcast program on television, and led the victim’s body going into the body of the victim who embl and embling off in the brus and resisting the bruts, by preventing the victim from getting out of the school, and led the victim to suppress the victim’s resistance, and continued to “I shall not have any brud it,” and sexual intercourse once with the victim’s will and panty.

4. On December 2006, the Defendant, at the same place as above 3. Paragraph 3. on December 2, 2006, was raped by having sexual intercourse one time after suppressing the victim’s resistance by inserting the Defendant’s hand into the clothes of the above victim who was divingd with Nonindicted Party 1, and exposing milch with the Defendant’s hand, inserting the Defendant’s hand into the victim’s panty, and continuously blocking the victim’s body from going to the victim’s body.

5. At around 01:00 on January 1, 2007, the Defendant, at the same place as above 3.3., and at the expense of the victim locked with Nonindicted Party 1, the Defendant, by inserting the Defendant’s hand, and continuing to commit indecent act by force, such as by inserting the Defendant’s hand into the victim’s panty, and by gathering the sound part of the victim.

6. The Defendant, at around 01:00 on February 2, 2007, committed indecent acts by force by force, at the same place as the above 3.3, at the same time as the above 5. The Defendant committed indecent acts by force on the part of the victim by means of spreading milbling the victim’s s

7. On February 2, 2007, the Defendant, at the same place as the above 3. Paragraph 3, and in the same manner as the above 4. Paragraph 4, prevented the victim from leaving the body of the victim, thereby having sexual intercourse with the victim one time after suppressing the victim’s resistance.

1. Partial statement of the defendant;

1. Legal statement of the witness Nonindicted 2

1. Partial statement of the suspect interrogation protocol of the defendant by the prosecution;

1. Each statement made by the police on Nonindicted 2

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

Article 8-2(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 9110 of Jun. 13, 2008), Article 297 of the Criminal Act (the crime of rape of minors under the age of 13), Article 8-2(2) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 8059 of Oct. 27, 2006), Article 298 of the Criminal Act (amended by Act No. 8059 of Oct. 27, 2006), Article 298 of the Criminal Act (amended by Act No. 810 of Jun. 13, 2008), Article 8-2(3) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof, Article 298 of the Criminal Act (amended by Act No. 910 of Jun. 13, 2008).

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 provided for in the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (Violation of the Act on the Protection, etc. of Victims (Minor Rape, etc. under Fifteen Years of Age) due to Rape, etc. on February 2, 2007 with the largest penalty

1. An order for disclosure;

Article 3(4) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 9765, Jun. 9, 2009); Article 38(1)1 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 9765, Jun. 9, 2009); Article 38(3) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 10391, Jul. 23, 2010); Article 38(1)1 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 9765, Jun. 9, 2009) (wholly amended by Act No. 10391, Jul. 23, 2010); Article 23(3) of the former Act on the Protection of Juveniles against Sexual Abuse (wholly amended by Act No. 7801, Dec. 29, 2005).

1. Summary of the assertion

Although the Defendant committed an indecent act against the victim by deceiving the victim’s chest at the time, place, etc. stated in the criminal facts of the judgment, the Defendant did not have any satisfy the part of the victim. The criminal facts of the judgment are the same time and place as the criminal facts of the judgment. The Defendant committed an indecent act against the victim at the time, and there was no fact of rape. The Defendant did not commit an indecent act against the victim at each time and place described in paragraphs (4) and (7) of the criminal facts of the judgment. The Defendant did not commit an indecent act against the victim, and included the victim’s fingers in the part of the victim’s satisfy while indecent act by force.

2. Determination

A. First, we examine whether the Defendant committed an indecent act against the victim at the time and place as stated in Paragraph 1 of the criminal facts as stated in the judgment of the Defendant and the victim’s sexual intercourse with the victim.

At the time of the first investigation into the police, the victim did not memory accurately, but at the house of Nonindicted Party 1 in 2006, he had been under his clothes, and at the time when Nonindicted Party 1 and himself grow in her invasion, the victim started to come up with her hand over her own panty and panty with her hand when she was seated. The victim stated that she escaped (the defendant) while she was her body fright at the bar. (The 13 pages of the investigation record) The victim was present as witness in this court, and the witness and Nonindicted Party 1 appeared in 206, and the victim made a statement to the effect that she was unable to reach her chest at the time of the investigation agency and witness’s her chest, but she made it difficult for the victim to write 1 and her chest on her own frightty as well as she made a statement to the effect that she made it difficult for the victim to write 2 of the crime by force on her own by force.

B. Next, we examine whether the defendant has raped as described in paragraph (3) of the crime committed in the judgment of the victim.

피해자는 경찰 제1회 참고인조사시 「2007년 가을 무렵 오후 2시쯤 공소외 1의 집에 갔는데, 공소외 1은 없고 피고인만 있어서 안 들어가려고 하다가 피고인이 들어오라고 하여 들어갔다. 피고인은 처음에는 텔레비전을 보다가 갑자기 야한 비디오테이프(외국인 여자랑 남자가 옷을 다 벗고 나오는 것)를 틀더니 같이 보자고 하였다. 그러더니 자신(피해자)의 손을 잡고 피고인의 성기를 만지게 하고, 자신을 바닥에 눕힌 다음 상의를 들어올리고 팬티까지 내리더니 피고인의 성기를 자신의 음부 안에 억지로 넣었다 빼는 행위를 약 10분 정도 하였다. 자신이 소리 지른다고 하였는데도 피고인은 어디 소리질러 보라며 자신의 손목을 꽉 잡은 채로 놓아주지 않았고, 피고인이 성기를 넣는 순간 너무 아파서 소리도 못 질렀다. 당시 자신은 성관계가 무엇인지도 몰랐는데, 지금 생각해 보니 그때가 첫 성관계였다.」는 취지로 진술하였고(수사기록 14쪽), 경찰 제3회 참고인조사시에는 「자신은 2006. 가을 오후 2시경 공소외 1의 집에 놀러 갔는데, 공소외 1은 없었고, 피고인이 들어오라고 하여 들어갔더니 피고인이 ’여자가 다 벗고 나오는 텔레비전’을 보고 있다가, 자신의 팔을 누르고 옷 속으로 손을 넣어 만지고 바지를 벗긴 뒤 강제로 성기를 자신의 음부에 넣었다. 자신이 아프다고 반항을 하자 피고인은 괜찮다고 하면서 계속 넣었다. 나중에 자신의 음부에서 피가 나서 그 집 화장실에서 음부를 씻고 공소외 1의 방에 들어가 있었다.」는 취지로 진술하였으며(수사기록 170쪽), 이 법정에서도 「2006. 가을 날짜를 모르는 날 2시쯤 공소외 1의 집에 놀러갔는데, 공소외 1이 없어 밖에서 기다리려 하였더니 피고인이 집으로 들어와 기다리라고 하여 들어갔다. 방안에서 피고인은 여자가 옷을 다 벗고 있는 영화를 보고 있었는데, 증인에게도 보라고 하여 그냥 옆에 앉아 있었더니 피고인이 갑자기 증인의 팔을 누르고 옷 속으로 손을 넣어 만진 후 증인의 바지를 벗기고 아프다면서 싫다는 증인을 내리누르고 피고인의 성기를 증인의 성기에 넣어 강간하였다. 당시 증인의 밑(성기)에서 피가 나서 화장실에 가서 피를 닦았다.」고 진술하였고( 공소외 2 증인신문조서 3쪽), 피고인도 검찰 피의자신문시에는 「2006. 가을 14:00경 자신(피고인)의 집으로 놀러 온 피해자를 보고 욕정이 생겨 옆에 앉아 있던 피해자를 강제로 눕힌 후 바지와 팬티를 벗기고 자신의 성기를 피해자의 음부에 넣으려고 하였으나, 피해자가 소리치며 손으로 음부를 막아 피해자의 팔을 강제로 잡아챈 후 자신의 성기를 피해자의 음부에 집어넣는 방법으로 강간하였다.」는 취지로 진술하였다(수사기록 199쪽).

In full view of the above statements by the victim and the defendant, although the victim was merely 11 years old at the time when the crime of rape as stated in paragraph (3) of the crime in the judgment of the victim was committed, the victim could not accurately memory about the year when the rape was committed. However, there is accurate and concrete statement about the season (A) and time when the crime of rape was committed (14:0) and the situation immediately before the crime of rape and the contents of the crime of rape. The defendant's statement at the prosecutor's office also conforms to the victim's statement about the season or time when the crime of rape was committed, the victim's act of indecent act as stated in paragraph (1) of the crime in the judgment is committed by indecent act by force on the part of the defendant's wife at night, and it is difficult to view that the victim's indecent act committed at the same time and place as the crime of indecent act as stated in paragraph (3) of the crime in the judgment of the court below is the crime of rape as stated in paragraph (3) of the crime.

C. Finally, we examine whether the defendant has raped the victim as described in paragraphs 4 and 7 of the criminal facts in the judgment.

The victim was unable to memory during the 3rd investigation into the crime, but the number of rapes took place 3 to 4 times. The victim was found to have been satisfe with Non-Indicted 1 at the house of 2006 after rapes 2 to 3:06, but the victim was satisfe with her panty and her panty, and the victim was satfe with her son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son's son.

D. Therefore, we cannot accept each of the above arguments of the defendant and his defense counsel on the ground that they are without merit.

【Scope of Penalty Surcharge】

From 5 years to 22 years of imprisonment;

【Determination of Punishment of Crimes】

(1) A crime of violating the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims due to rape (a minor, rape, etc. under the age of 13): Type 3 of a sex crime group and a sex offense subject to the age of 1

(2) Offenses of the Punishment of Sexual Crimes and Protection, etc. of Victims thereof due to each indecent act: Type 1 (Indecent act by compulsion, etc./ constructive rape) of sex crimes group and sex crimes subject to the age of 13.

[Special Mitigation]

Each member of the Committee shall not be punished

【Scope of Recommendation】

(1) Crimes of violating the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof due to rape (the age of 13, minor rape, etc.): The area in which punishment is mitigated, four years to six years.

(2) Crimes of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims due to each indecent act (the age of 13, minor rape, etc.): Imprisonment with prison labor for one year or more to three years.

【Application of Criteria for Multiple Crimes】

From 4 years to 11 years of imprisonment (=6 years + 3 years + 2 years)

[Restrictions by the applicable punishment by law]

Since the lower limit of punishment by law is five years of imprisonment, five years of imprisonment to 11 years of imprisonment.

【General Person】

Use of Personal Privacy

[General Mitigation]

No criminal punishment for a sexual crime is available;

【Determination of Sentence】

5 years of imprisonment;

There is no criminal record other than that sentenced to a fine in violation of the Punishment of Violences, etc. Act in 1980, and there is no circumstance to consider the defendant, such as the fact that the defendant does not want to punish the defendant any longer by mutual consent with the victim, and that the defendant recognizes it as a substitute for each indecent act and reflects it.

However, each of the crimes of this case is an opportunity for the defendant to play in his/her own house. The victim of 11 years old who did not properly understand the concept of rape and indecent act was rape and indecent act several times for about six months, and the criminal liability is very significant. Nevertheless, the defendant claims that the crime of rape was based on the victim's mistake and avoid liability, or does not seriously reflect his/her mistake, taking into account the circumstances unfavorable to the defendant, such as the defendant's age, character and behavior, family environment, the circumstances and method of each of the crimes of this case, and the circumstances after the crime, etc., the punishment shall be determined as per the disposition, taking into account all of the sentencing conditions in the trial process of this case, such as the defendant's age, character and behavior, family environment, and the circumstances after the crime.

1. Summary of the request for attachment order;

A person who is requested to attach an attachment order may commit a sexual crime on at least two occasions as stated in the judgment and have the habitability to commit a sexual crime and have the risk of recommitting a sexual crime.

2. Determination

A. Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Offenders refers to a habitive wall that repeatedly commits a sexual crime. In determining the existence of such habitive wall, whether it is possible to recognize the habitive wall by comprehensively taking into account all the circumstances, including the previous criminal record, the frequency, period, motive, means, and method of the crime, including the frequency of the crime, as well as the number of times, period, motive, and method of the crime. The term “risk of re-offending” means that the possibility of re-offending alone is insufficient, and that it is highly probable that the person who requested the attachment order may destroy legal peace by again committing the crime in the future. This means that all the circumstances such as the occupation and environment of the person who requested the attachment order, the criminal records before the crime, the motive and means of the crime, the circumstances after the crime, and the outline of the crime should be objectively assessed and determined objectively.

B. As to the instant case, in light of the fact that a person subject to a request to attach an attachment order commits rape or indecent act by force on several occasions over a period of six months, as indicated in the judgment of the person subject to the request, each of the instant crimes may be deemed to have constituted a sexual crime by the person subject to the request to attach an attachment order.

C. However, according to the criminal records, (1) prior to each of the crimes of this case, the person requesting the attachment order did not have any criminal records except for those sentenced to a fine of 50,00 won for a violation of the Punishment of Violences, etc. Act around 1980; and (3) there was no criminal record until three years have passed since the last crime of this case even after each of the crimes of this case; and (2) Each of the crimes of this case is rape or indecent act by force of the victim under 11 years of age, who was unable to understand the concept of rape or indecent act by taking the opportunity for the person requesting the attachment order to play at his/her own house as an opportunity to understand the crime; (3) the person requesting the attachment order does not actively color the victim subject to the crime or create an opportunity to commit the crime on his/her own; (4) the evaluation of the risk of recidivism by a sexual offender under 18 years of age or more, which is an assessment of the overall risk of recidivism, constitutes an intermediate risk of recidivism; and (4) it is difficult to determine the general risk of recidivism.

3. Conclusion

Thus, the request for the attachment order of this case is without merit, and it is dismissed in accordance with Article 9 (4) 1 of the Act on the Electronic Monitoring of Specific Criminal Offenders.

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

Judges Lee Jong-young (Presiding Judge)