(영문) 서울중앙지방법원 2018.6.4. 선고 2017고합1245 판결

A seized scopic (No. 10) shall be confiscated from the defendant. The defendant shall be ordered to complete a sexual assault treatment program for 40 hours.

A person subject to an application for attachment order shall be ordered to attach an electronic tracking device for 15 years. The matters to be observed in the attached Form shall be imposed on the person subject to the application for attachment order during the period of attachment. The period of registration of personal information of the accused shall be

Reasons

The facts constituting a crime and the facts leading up to the request for attachment order [1] 2017 high-priced 1245 Defendant and the person subject to the request for attachment order (hereinafter referred to as “Defendant”) entered the Gun around August 2014, when the Defendant met at a club or was dead at around 18, 2014, and was discharged from military service on or around March 2015, the Defendant was married with the victim on or around May 20, 2016, and got married with the victim on or around C. The victim and the Defendant were married with the victim on or around May 20, 2016. Although the Defendant and the Defendant were married with the Defendant by raising a considerable amount of income by running a sales shop for the extension of the eyebrow and operating a nutrition clinic, operating a dietitian, and operating an Internet sales business for the eyebrow, and then forced the Defendant to drink and exercise frequently alcohol due to the problem of the bareboat surgery transaction, the Defendant was forced to do so between the victim and the victim's employee.

The defendant, once he experienced economic difficulties from home and abroad, received money to get a divorce at the victim's request, and then the court around October 2017, 31.

Around February 2018, an applicant for divorce by agreement was filed and the period of care was given to the victim by not later than February 2, 2018, but the fact was that the victim collected with the military register and tried to prevent divorce by gaining the victim's opportunity to view the victim's family in the situation where the victim had no mind to divorce with the victim due to the need of the victim's economic ability.

1. Special intimidation;

On November 26, 2017, at around 01:00 to 02:00, the Defendant discovered F message from the cell phone of the victim (the age of 22) who was viewed as a petant relationship from the cell phone of the victim (the age of 22) of the D Building E, and threatened the victim with a knife and knife the knife and knife the knife at that place, and threatened the victim with the head on the knife floor by pusheding the victim over the floor, and threatening the victim's knife with the knife with the knife.

2. Rape;

The Defendant, as stated in the above 1., threatened the victim, and frightened the victim whose resistance was detained, brought the victim in his room, and forced him to be off his clothes, and raped once.

3. The victim of murder reported rape at around 05:30 on November 26, 2017 to the police immediately after the defendant escaped from the defendant's home to the hospital, after having been raped. At around 09:30 on the same day, the defendant got phone from the police officer who was in charge of the above rape and became aware of the fact of rape, making it more impossible for the defendant to put the victim into the crime, and making it more impossible for the defendant to possess the victim, if the defendant could not own it.

On November 26, 2017, at around 17:03, the Defendant had a knife (total 32 cm, 19.5 cm, No. 10 cm) located at the above Defendant’s house, and driving the vehicle at the victim’s house located in Gangnam-gu, Gangnam-gu, at around 17:55 on the same day, after having arrived at the victim’s house in the vicinity of the victim’s house, the Defendant saw the knife inside the victim’s knife and knife the knife in front of the victim’s house.

At around 18:00 on November 26, 2017, the Defendant found the victim who opened and emitted the entrance at the entrance of the Gangnam-gu Seoul Metropolitan Government G Building, immediately obstructed the victim from leaving the entrance, she was spared, and intending to spared the victim, and she spared the victim, she again saw the victim into the entrance of the said building and knee knee kel kel kel kel, she knife in advance knife within the defendant's lock, she 1 knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife k.

At around 16:00 on September 23, 2017, the Defendant argued with the Defendant at the home of the above Defendant and brought about a divorce with the victim B who returned to the home, and brought about a dispute with the victim B, and brought about a knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife.

【Fact of Grounds for Request for Attachment】

The Defendant committed murder as stated in the judgment below, and in light of the background, method, character and conduct, etc. of the crime, there is a risk of recommitting murder.

Summary of Evidence

“2017 Highest 1245

1. Statement made by the defendant on the first day of preparatory hearing (written statement on the part of paragraphs (1) and (2) of the crime committed on the market);

1. Each prosecutor's protocol of examination of the accused;

1. Statement of the police statement related H;

1. Each written statement of I, J, K, and victims;

1. The victim's photograph (number 95), on-site photographs (number 4, 23), CCTV images CDs;

1. The police seizure record and the list of seizure;

1. Investigation report (investigation of suspect and victim moving routes), investigation report (in relation to the first visit and photographing of victim B and photographs), investigation report (in case of confirmation of emergency medical records);

1. Photographs of the body of the victim, results of the autopsy, response to requests for appraisal with the State and water (Attachment to electronic appraisal) and response to requests for appraisal with the State, and response to requests for appraisal with the State;

1. The risk of recidivism in the judgment: The defendant prepared to commit the crime in several ways as planned in advance and maintained the intention of murder and maintained the method of committing the crime, the defendant's total sum of 13 points as a result of the application of the KORAS-G (total point of 30 points) to the Korean adult risk assessment (total point) and 15 points as a result of the evaluation (total point of 40 points), the risk of recidivism due to mental disorder (PC-R) is 15 points in total. The risk of recidivism due to mental disorder characteristics is very weak in the support system of the surrounding human relations and family members. In light of the overall situation of this case, the defendant did not control his behavior and tendency to aggressive and aggressive behavior against the surrounding people, the defendant appears to have shown the risk of recidivism, how to commit the crime in this case, how to commit the crime, how to commit the crime in this case, how to commit the crime, how to commit the crime in this case, and how to commit the crime in this case, and how to commit the crime in full view.

2018Gohap418

1. Defendant's legal statement;

1. Each legal statement of witness L and M;

1. N (2017 Gohap1245 Records Nos. 52), 0 (2017 Gohaphap 1245 Records Nos. 65), each police protocol against victims;

1. Application of statutes on photographs of damage;

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

Article 250(1) of the Criminal Act (homicides, Selection of limited imprisonment), Article 284 of the Criminal Act (Special Intimidations on November 26, 2017, Selection of Imprisonment), Article 297 of the Criminal Act (Rape), Article 284 of the Criminal Act (Special Intimidations on September 23, 2017, Selection of Imprisonment)

1. Mitigation of self-denunciation;

Articles 52(1) and 55(1)3 of the Criminal Act (as to the crime of homicide),

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes for rape prescribed by the largest penalty)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Order to complete programs;

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

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

Article 5(3), Article 9(1)1, Article 9-2(1)1, Article 9-2(1)2, 2-2, 3, and 5 of the Act on Probation, Electronic Monitoring, etc. of Specific Criminal Offenders

1. Exemption from an order for disclosure and notification;

In full view of the circumstances indicated in the records of the instant case, such as the background of the sexual crime in this case, the relationship with the victim, the age and occupation of the defendant, and the benefits and preventive effects expected by the order of disclosure or notification to the defendant, and the disadvantages or side effects of the order, the determination of the defendant's assertion of his/her personal information as to the defendant and his/her defense counsel shall be made, in light of Articles 47 (1) and 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 against Sexual Abuse (the defendant has no history of being punished

1. Part of special rape;

A. Summary of the assertion

In the process of reconciliation with the victim, the parties were only sexual intercourses under the agreement and did not rape.

B. Determination

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court, the defendant and his defense counsel’s assertion is not acceptable, since the defendant cited a knife as stated in paragraph (1) of the facts constituting the crime in the judgment of the court and threatened the victim, and thereby, the victim’s rape as described in paragraph (2) is acknowledged in the situation where the victim’s resistance was threatened.

① After the occurrence of the instant case, the victim stated the fact of damage at the P Hospital emergency room, and the Police Hospital. The victim’s statement is consistent with the Defendant’s knife and knife that he would die without death. (Evidence No. 539, 542, 551 pages), the details of the statement, and the body of the body of the victim. Also, the victim attempted to knife and knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knif.

② On November 16, 2017, the victim sent text messages to the Defendant, including “a hotel inside this place”, “a hotel was committed on November 22, 2017,” and “bating in Q Q.” In addition, on November 25, 2017, the victim sent a text message to the Defendant, including “a defendant who was sent to the Defendant at the Defendant’s home,” and “a person who was sent to the Defendant at the Defendant’s home (21:39:15),” and “a person who was sent to her body farbly (22:20:27),” and “a person who promised to do so)” (22:10:33). The victim requested the Defendant’s sexual intercourse, and the victim’s sexual intercourse was not known prior to the Defendant’s request.

(3) When the victim finds a key sign in the victim’s item when providing meals, the victim’s cell phone was reported to confirm the relationship with other males, and the victim threatened the victim with a knife as indicated in the facts constituting a crime in the process. As seen earlier, the victim appears to have no intention to engage in the sexual relationship with the Defendant from the beginning to the point of view, the cause of fighting was the male relationship of the victim, and the content and method of intimidation inflicted on the victim, etc., it is difficult to view that the victim immediately respondeded with the Defendant and responded to the sexual relationship.

④ The Defendant threatened the victim with the knife and prevented him from leaving a cell phone without being exposed to the cell phone. The victim did not have the clothes of the knife at the new wall and went to the emergency room of a hospital without being equipped with the Defendant’s clothes. The victim also known that “the Defendant returned to G stude because he was hacke by his parents.” Taking account of the above circumstances, it is reasonable to view that the victim did not refuse the Defendant’s unilateral demand and sexual intercourse under the circumstances in which the situation of the outer one due to the assault and intimidation and the anti-domine pressure continues to exist.

6. At the time of sexual intercourse, the Defendant stated that he was able to say that he was able to say that he was able to say that he was able to say that he was able to say that he was able to say that he was friendly and less, and that he was able to agree with the Defendant’s argument in some evidence. 2) However, the above circumstances and the victim were threatened by the Defendant as described in the facts of the crime (2018Dahap418) previously stated, such as the facts of the crime (2018Dahap418), and the Defendant was able to commit suicide, and the fact that the Defendant was able to commit suicide, the fact that the Defendant submitted by the Defendant was able to request divorce continuously and the victim was able to unilaterally agree with the Defendant’s ruling, and the victim appears to have unilaterally agreed with the Defendant’s decision on October 20, 2017 that he did not agree with the Defendant’s request on the basis that he did not respond with the Defendant’s free will.

[However, as seen below, it is difficult to view that there was an intentional rape at the time when the defendant uses a knife and threatens the victim, the charge of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (special rape) constitutes a case where there is no proof of a crime. However, this part of the facts charged contains special intimidation, rape, and the defendant continues to dispute whether knife or rape had been raped from an investigation agency to this court, and therefore, there is no concern that the special intimidation and the crime of rape without any amendment of a bill of indictment would actually be at a disadvantage to the defendant's exercise of his right to defense even if the rape was recognized. Thus, it is recognized that each crime

2. Part on special intimidation

A. Summary of the assertion

This part of the crime is a family protection case under the Act on Special Cases Concerning the Punishment, etc. of Crimes of Domestic Violence (hereinafter referred to as the "Domestic Violence Punishment Act"), and the victim has already stated that it would not be punished for the defendant, and even if there was no change in the victim's intention thereafter, it constitutes abuse of the right to institute a prosecution again for the same crime.

B. Determination

Where a decision on a protective order under the Domestic Violence Punishment Act becomes final and conclusive, in principle, a new prosecution against the same offender cannot be instituted (Article 16 of the Domestic Violence Punishment Act), but such protective order is not final and conclusive, and thus res judicata has no effect on the same case. Therefore, if a new prosecution is instituted for the same case as the case subject to a protective order, it shall not be acquitted, but it constitutes a case where the procedure for instituting a prosecution is invalid for violating the provisions of the Act, and thus, it shall be dismissed pursuant to Article 32

Meanwhile, a prosecutor has the discretion to institute a public prosecution where it is deemed reasonable to impose criminal sanctions on the grounds of the elements of a crime and not to institute a public prosecution by taking into account the matters under Article 51 of the Criminal Act (Articles 246 and 247 of the Criminal Procedure Act). Since such discretion of a public prosecutor is due to the fact that allowing a public prosecutor, who is a representative of the public interest, to institute and maintain a public prosecution from an objective point of view, to achieve the propriety and rationality of the criminal prosecution, it has its inherent limits. Therefore, where it is determined that a prosecutor arbitrarily exercised his/her authority to institute a public prosecution and thereby seriously deviates from the prosecution discretion by causing substantial disadvantage to the defendant, the prosecution may be denied in light of abuse of the authority to institute a public prosecution (see Supreme Court Decision 2016Do5243, Aug. 23, 2017).

Based on the investigation results of the crime suspicion, the record review results of the previous home protection case, etc., the prosecutor makes it necessary to enforce the state's penal authority on this part of the crime.

Therefore, the defendant's assertion is not accepted.

1. Reasons for sentencing: Imprisonment with prison labor for a period of two years and six months to 45 years;

2. Scope of recommendations according to the sentencing criteria;

○ 1 Crime: homicide

[Determination of Punishment] Type 2 (Ordinary homicide3)

[Special Convicted Persons] Self-denunciation / Planning homicides, cruel Acts

[Recommendation and Scope of Recommendations] Aggravation, 15 years or more of imprisonment, more than life imprisonment

* The Defendant asserts that the crime of this case is not planned to have been committed, but that the crime of this case occurred due to a unique defect, such as depression and fladic disorder. The Defendant is recognized as having received medical treatment from around December 2, 2009 to the relatively recent years, but the Defendant was unable to do so by taking account of the following facts: ① the Defendant, with a knife at home at around 16:59, parked his own car at a knife away place from the victim’s house without contact, and then parked his car at a knife away from the victim’s house, and then tried to forced the victim to leave the front door of the house where the victim resides with a knife with a knife at the victim’s house, and ② the Defendant took the knife without any attempt by the victim to kill the victim, and the Defendant could not be seen as having taken advantage of the knife before he died of the victim’s knife.

○ Second Crime: Rape

[Determination of Punishment] General Criteria for rape (subject to at least 13 years of age)> Types 1 (General Rape) (Special Rape)

[Recommendation and Scope of Recommendation] Basic Field, two years to five years

○ 3 Crime: Special intimidation made on November 26, 2017

[Determination of Punishment] Types 4 (Habitual Offense, Cumulative Offense, Special Intimidation) (Special Sentencing)

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment of 6 months to 1 year and 6 months;

○ 4 Crimes: Special intimidation made on September 23, 2017

[Determination of Punishment] Type 4 (Habitual, Cumulative, Special Intimidation)

[Special Convicts] Ad Hocs (including serious efforts to recover damage) or where considerable damage has been restored to 4)

[Recommendation and Scope of Recommendations] Reduction Area, 4 months to 1 year

○ The scope of final sentence due to the aggravation of multiple crimes: Imprisonment with prison labor for not less than 15 years and imprisonment with prison labor for not less than

3. The life of a person determined to be sentenced is the origin of human dignity. As such, there is an absolute existence that cannot be altered in what is the world. Our law protects the life of a person who is the most valuable value as the highest legal interest. An act infringing on it constitutes a serious crime that cannot be absolutely acceptable, regardless of its reason.

From this point of view, the Defendant: (a) got off a business loss; and (b) took violence against the victim; (c) took an entertainment drinking house from time to time under the pretext of having a business contact; and (d) took part in the case of sexual assault by female employees. Nevertheless, without considering the Defendant’s mistake, the Defendant knew of the fact between the victim and the knife, threatened the victim with the knife and the knife; (b) forced the victim to be off the clothes; and (c) eventually, the relationship with the victim was disappeared.

The Defendant reported the victim’s illegal operation and threatened him/her with the knife and killed several times in order to have the victim returned to himself/herself, and attempted to commit suicide. In addition, considering the statement of the Defendant and the conversation between the victim and the victim, it is sufficient to assess whether the Defendant was faced with the victim due to the rash, and that the Defendant had a distorted accident with respect to love, marital life, childcare, and sex relationship.

The Defendant, by taking advantage of the fact that the victim is living in another male, threatened the victim with knife and rape, and murdered the victim with the defect of the report made by the victim. The Defendant, as seen in the street, flife the victim, and caused the flife to die on several occasions without any further resistance. Nevertheless, the Defendant focused on emphasizing the victim’s her mother, such as the appearance of the victim, up to the time in this court. Accordingly, the Defendant’s father’s father’s father’s homicide should life and live together. The bereaved family who lost her father’s her father’s scife and suffering from the Defendant’s criminal act, is self-concepted, and it seems that the bereaved family members who lost her father’s son’s knife and suffering from the Defendant’s psychological shock and pain will live in the future. It is too natural that it is too natural that the bereaved family members who were flicking the Defendant’s severe punishment against the Defendant.

In addition to the above circumstances, comprehensively considering the sentencing factors such as the Defendant’s age, character and conduct, environment, family relationship, etc., it is deemed inevitable to isolate the Defendant from society for a long time, even considering the fact that the Defendant voluntarily surrenders himself/herself and is committed the instant crime, and that the Defendant has no specific criminal power, and thus, the sentence is determined as

Where a judgment of conviction becomes final and conclusive on the registration of personal information for the crime of rape pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the defendant becomes 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 authority pursuant to Article 43 of the same Act (in light of each statutory punishment, such as murder, which is not a sex offense subject to registration, and a sex offense subject to registration, and other circumstances revealed in the argument in this case, it is improper that the period of registration is set at 30 years pursuant to Article 45(1)1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and therefore, the period of

Part of innocence - Violation of the Special Act on the Punishment, etc. of Sexual Crimes (Special Rape)

1. Summary of the facts charged

The Defendant threatened the victim as a knife at the time and place specified in Paragraph (1) of the above crime, and forced the victim to be off his clothes, and had sexual intercourse once.

2. Determination

As seen earlier in the part of the judgment on the Defendant’s and the defense counsel’s assertion, the fact that the Defendant threatened the victim with a knife, and that the Defendant raped the victim in the situation where the resistance suppression was continued.

However, in light of the following circumstances acknowledged by this court’s evidence, i.e., the Defendant appears to have used a knife and threatened knife on the part of the victim, i.e., the Defendant’s knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife, and the Defendant appears not to have engaged in sexual intercourse whenever knife knife or assault knife

Therefore, this part of the facts charged constitutes a case where there is no proof of a crime, and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as seen earlier, the defendant is guilty of special intimidation contained in this part of the facts charged, and the defendant is not

Judges

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young

Note tin

1) To the extent that it does not impede the Defendant’s exercise of the right of defense, part of the facts charged was appropriately revised.

2) On November 26, 2017, the Defendant sent text messages, such as ‘I', ‘I'd', ‘I'd', ‘I'd', ‘I'd', ‘I'd', and ‘I'd', and on November 26, 2017.

From 11, 26, 09:05:44 to 24 minutes, the police officer taken a kismark of the defendant at around 09:32:49, immediately after the call with the police officer.

3) In the instant case, it appears that the victim’s report on rape was the motive for the Defendant to commit the murder. However, the primary motive is to coordinate the decision’s intent;

The strong collection of victims, the original and significant appraisal of the ship, etc. are combined, and the commencement of investigation into rape and criminal punishment are also conducted.

Inasmuch as it was not seen that retaliation was intended due to fear, it is not classified as ‘non-accident motive murder'.

4) As seen earlier, the instant indictment does not constitute abuse of the power to prosecute, but the victim’s first police statement at the time was made.

As long as the defendant expresses his/her intention to be suitable for counseling treatment rather than punishment after withdrawal, it shall be considered as a special breeder.

section 60.