2016 Highest 97 Indecent Act by force and inducement

A

Papna (Lawsuits) and the largest leather trial;

Attorney B

January 10, 2017

A defendant shall be punished by imprisonment for not less than eight months.

The defendant is ordered to take a lecture for sexual assault treatment for 80 hours.In the facts charged of this case, the defendant is acquitted.

Criminal facts

On January 21, 2016, at around 21:00, the Defendant used buckbucks by putting the chest in front of the D elementary school located in Yangyang-gu, Yangwon-gun C, with the clothes of the victim E (n, 20 years of age) who was sitting in the top of a sudden steering in the Defendant’s K5 car.

Accordingly, the Defendant committed an indecent act on the part of the victim.

Summary of Evidence

1. Defendant's legal statement;

1. A complaint;

1. stenographic records of the victim's statement or a victim's statement video CD;

1. Application of Acts and subordinate statutes to professional opinions of sexual assault against the disabled women;

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

Article 298 of the Criminal Act

1. Order to attend lectures;

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

1. Exemption from an order for disclosure and notification;

Article 47(1) and Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles Sex (the crime of this case is not a crime against many unspecified victims; the defendant has no record of being punished before the crime of this case; in this case, the defendant is likely to have an effect of preventing the recidivism of the defendant to a certain extent through the registration of personal information against the defendant and attending a sexual assault treatment course. In addition, in light of all the circumstances, such as the defendant's age, character, character, family environment, social relationship, etc., the effect of preventing sexual crimes, which can be achieved by the disclosure and notification order, seems to be relatively less than the disadvantages and anticipated side effects that the defendant will suffer, and therefore, there is no special reason that the disclosure and notification of personal information on the defendant is not possible).

1. The grounds for sentencing: Imprisonment with prison labor for not more than ten years;

2. Application of the sentencing criteria;

[Determination of Type] Crimes of Indecent Act by Indecent Acts by Force (General Indecent Acts by Force) on the General Standards for Sexual Crimes

[Scope of Recommendation] Basic Area (6 months to 2 years)

3. Determination of sentence;

The Defendant committed an indecent act by force against a victim suspected of having a intellectual disability introduced by himself on the premise of his sexual relation, and the nature of the offense is not good. Nevertheless, the Defendant did not make efforts to recover the damage, and did not receive any tolerance from the victim. In particular, even though there was a history of being punished three times by a fine due to a sex purchase crime, the Defendant continues to engage in a similar type of legal act without reflectivity, in view of the form and circumstance of the crime, and the Defendant appears to have distorted sexual values in view of the type of the crime, and actively prevented the use of it, and thus, it is necessary to punish the Defendant corresponding to the Defendant’s liability.

However, in light of the fact that the defendant recognized the crime of this case as well as his mistake in depth, there is no record of punishment exceeding the fine, and the defendant's age, character and conduct, family environment, means and result of the crime, and all of the sentencing conditions as shown in the arguments of this case, such as the circumstances after the crime, the punishment shall be determined like the order.

Where this judgment becomes final and conclusive, a defendant is subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit his/her personal information to the head of the competent agency pursuant to Article 43 of the same Act.

The acquittal portion

1. Summary of the facts charged;

The defendant is between victim E (n, 20 years of age) who is a disabled person of Grade III with intellectual disability and victim E (n, 20 years of age).

A. On January 18, 2016, the Defendant: (a) expressed the victim’s mind that he would have sexual intercourse F with the victim, and (b) sought the victim’s house located in Incheon-gun G in the same manner as the above F; (c) went the victim into the Defendant’s K5 vehicle, and then, (d) went into the Defendant’s 307 room at the Hacheon-si Hacheon-si Ha.

Accordingly, the above F had induced the victim for the purpose of inducing the victim to have sexual intercourse.

B. On January 21, 2016, the Defendant, around 16:00, got the victim to drink as stated in the above J in order to have the victim engage in sexual intercourse with the intent of having the victim engage in the sexual intercourse with the victim, and went to the victim at the L Bus Terminal located in Suwon-gu, Yangwon-gun, Yangyang-gu, and left the victim to the victim at the L Bus Terminal located in Jungcheon-gu, Yangcheon-gu, J, 204, which is the residence of the said J.

Accordingly, the above defendant induced the victim to have sexual intercourse with the victim.

2. Determination

A. The term "induceivement" under Article 288 of the Criminal Act refers to an act of moving a person from his/her free living relationship or protection relationship to another person under the factual control of the person himself/herself or a third person by deceiving or herself as a means of deception (see, e.g., Supreme Court Decision 2007Do2318, May 11, 2007).

나. 위와 같은 법리에 비추어 이 사건을 살피건대, 검사가 제출한 증거들에 의하여 인정되는 다음의 사정들을 종합하여 보면, 피고인이 피해자를 2회에 걸쳐 F이나 J과 술을 먹자고 하면서 승용차에 태워 데려간 것은 실제로 피해자와 함께 술을 마시기 위한 것이었고, 피고인이 피해자가 취할 경우 F이나 J으로 하여금 성관계를 갖게 할 생각이 있었다 하더라도 이는 윤리적으로 비난받을 여지는 있을지언정 피해자를 간음할 목적으로 피해자를 기망 내지 유혹하였다거나, 피해자를 태운 승용차가 이동수단의 의미를 넘어 물리적·실력적 지배라는 측면에서 피해자를 사실적 지배하는 정도에 이르렀다고는 보이지 않고, 피고인에게 피해자를 기망 내지 유혹하여 피해자에 대하여 사실적 지배를 할 의사가 있었다고도 보기 어려우며, 달리 이를 인정할 만한 증거가 없다. 1) 피해자는 경찰에서, '피고인에게 N으로 심심하다고 술 마시고 싶다고 말하였고, 이에 피고인이 태우러 온다고 하였다. F과 만난 다음 날 피고인과 만나 술을 또 마셨다. J과 만날 때도 자신이 피고인에게 심심하다고 하자 피고인이 춘천으로 오라고 해서 못 간다고 하니 태우러 온다고 해서 양구로 버스를 타고 갔고, 양구에서 피고인과 J이 터미널 근처에서 기다리고 있다가 차를 타고 춘천에 갔다. J과 함께 회를 포장해 가서 J의 집에 갔고, 술을 혼자서 1병은 넘게 마셨다. 피고인이 나갔다가 다시 돌아와 집에 태워다 줬다.'는 취지로 진술하였다. 피고인도 경찰 및 검찰에서 '2016. 1. 18. F과 피해자가 서로 마음에 들어 하니까 모텔에서 술 마시다가 빠져주려고 한 것으로, 피해자에게 너 심심하면 F이나 만날래? 라고 물으니 피해자가 좋다고 해서 F에게 연락하니 F이 피해자를 데리고 오라고 모텔로 가자고 하였다. 피해자가 회와 청포도소주를 먹고싶다고 하여 F이 회와 술을 사다놓았고, 피해자를 태우고 춘천에 와서 F과 함께 모텔에서 술을 마시다가 중간에 자신이 가려고 하니까 피해자가 잘 가라고 인사하였고, 피해자가 00:00경 어디 갔냐고 다시 오라고 떼를 써서 다시 모텔에 갔다가 10분 정도 있다가 나왔다. 다음 날 아침 피해자가 버스터미널인데 시간이 많이 남았다고 만나자고 하여 만난 다음에 버스터미널에 데려다 줬다. 2016. 1. 21.에도 피해자로부터 심심하니까 술 사달라고 연락이 와서 버스타고 양구까지 오라고 한 후 J과 함께 춘천으로 데리고 왔다. 집에 가서 J이 자기한테 낮에 맡긴 컴퓨터를 찾아와야 되는데 네가 갔다 오라고 해서 자신은 자리를 비켜달라는 의미로 받아들였지만, 사전에 계획한 것은 아니었고, 갔다 와서 또 술을 마시다가, 20:00경 회사에서 전화가 와서 약 1시간 나갔다가 온 후 피해자가 집에 가야한다고 해서 집에 차로 데려다 주었다.'고 진술하고 있다. 위 각 진술에 의하여 알 수 있는 피고인과 피해자의 사건 전후의 행동, 관계, 대화 내용 등을 살펴보면, 피고인이 피해자에게 기망 내지 유혹을 하여 자신의 실력적 지배하에 둔 것으로 보이지는 아니하고, 더욱이 피해자의 행동이나 대화내용은 피고인으로부터 간음을 목적으로 유인당하는 피해를 입은 사람의 것이라고 보기도 어렵다.

2) ① The Defendant, F, and J consistently stated that the victim was unable to be aware of the disabled person; ② The Psychological evaluation report on the victim states that the victim was less than 43 years old, social age 14 years old, and social index 78 years old, and that the victim’s ability to adapt to society was significantly high compared to the patient’s intelligence index. The hospital and doctor 0 of the Gangwon National University shows that the victim was 6 years old, 11 years old, SP 67 years old, and 67 years old for the purpose of the examination of the entire intelligence development; ③ According to the written opinion of the expert of sexual assault case, the victim was unable to be aware of the disability of the victim; ② The victim was unable to know that the victim could not have any harm to the victim’s sexual self-determination ability due to the decrease in his ability to judge risks due to intellectual disability and early disability; and ④ The victim appears to have been aware of his/her intent to have been sexual intercourse with the victim, making it difficult for the victim to be aware of his/her intention and to have expressed his/her opinion immediately.

3) On January 1, 2016, the Defendant came to know of the victim’s dynamics and hers through the “P”, which was a mobile phone holder, and around January 11, 2016, the Defendant and the victim, the victim’s dynamics, and F have come to meet together with each other, regardless of the Defendant. On January 17, 2016, the Defendant and the victim and F exchanged with each other regardless of the Defendant.

A person shall be appointed.

On January 18, 2016, the following dialogues were made.

A person shall be appointed.

In light of the above dialogue contents, the victim seems to have been able to have known that he could drink with the defendant, F with the defendant, and F before the day of the instant case. 4) The victim filed a complaint with both the defendant, F, and J. On November 7, 2016, the prosecutor made a disposition against the defendant on the charge of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against the defendant, F, and J, violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against the Punishment, etc. of Sexual Crimes against F and J, and inducement of sexual intercourse.

C. Therefore, each of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

The presiding judge, judge, senior judge

Judges Yoon Young-young

For the purpose of judge well-being