2019Gohap628A. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (similarity)

(act)

(b) Violation of the Act on the Protection and Support of Missing Children, etc.;

(c) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

2019 Bago43 (Joint Attachment Orders)

2019Report41(Consolidated) Probation Order

1.(a) A

2.(c) B

An abnormal crime (prosecution) and a trial;

Attorney Kim Jong-tae (the national election for defendant A)

Attorneys Fire-Fighting (the national election for the defendant B)

January 17, 2020

Defendant A shall be punished by imprisonment with prison labor for six years and by imprisonment for two years.

The defendants shall be ordered to complete the sexual assault treatment program for 40 hours each. The information about the defendant A shall be disclosed and notified through the information and communications network for 10 years each (Provided, That the target crime is limited to the crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (similar act).

Defendants shall be subject to restrictions on employment in institutions, etc. related to children and juveniles and welfare facilities for persons with disabilities for each five years.

A person subject to a request to attach an attachment order shall be ordered to attach an electronic tracking device for ten years, and matters to be observed, such as “not approaching the victim” during the period of attachment of an electronic tracking device shall be observed. Defendant B’s request to attach an attachment order and the Defendants’ request to attach an attachment order shall be dismissed, respectively.

Criminal facts and the facts constituting the ground for attachment order [criminal facts]

1. Joint offenses committed by the defendant and the person to whom the attachment order is requested (hereinafter referred to as the "defendant");

No person shall protect a missing child, etc. without reporting to the chief of a police agency without justifiable grounds.

The Defendants knew to each other, and Defendant A became aware of the victim D (one year old, 14 years old) through C, one’s own post-ship, around the beginning of August 2019.

On August 5, 2019, the Defendants jointly carried the victim on a passenger car driven by Defendant A with the knowledge that the victim would move out from the new wall around August 5, 2019, and went to Incheon Jung-gu E, and had the victim in the above E from around that time to August 6, 2019. Accordingly, the Defendants jointly protected the victim without reporting the missing child, etc. to the head of the police office without justifiable grounds.

2. Defendant A

At around 07:00 on August 6, 2019, the Defendant demanded the victim to find a defect in the sex relationship within the 07:00 room of the above E room, but forced the victim to be rejected, and forced to go off the victim's will, and took clothes, the Defendant was fluened on the part of the victim's sound part where the Defendant was fluened with the Defendant's sexual flag, and the Defendant was fluened with the brue of the victim's chest who was suffering from the victim.

After about 30 minutes of time, the Defendant: (a) told the victim to talk again after 30 minutes of time in order for the victim to stop, and (b) asked the victim to have sexual intercourse; (c) again, (d) forced the victim to be rejected, and (e) forced the victim by force, (e) forced the victim's chest by hand, and (e) forced the victim's chest, (e) forced the victim's chest, and (e) laid off his sexual organ on the part of the victim's drinking part, (e) took off the victim's inner organ, and her fingerd into the part of the victim's sexual organ, and (e) laid down his finger into the victim's sexual organ. Accordingly, the Defendant committed an act of gathering his finger, etc. by assaulting or threatening the victim who is a child or juvenile.

3. Defendant B

Around 16:00 on August 6, 2019, the Defendant, as a part of the above E method, putting the victim’s knife by gathering the victim’s knife into the inside of the above victim’s knife, and boomed the victim’s knife by returning the victim’s body back to the opposite knife by hand after returning the victim’s body back to the Defendant, and again sending the victim’s knife to the Defendant, and expressing the victim’s intention of refusal, “I want to die back and back?????????????’s knife by force, the victim’s knife knife and knife knife knife

Accordingly, the defendant committed an indecent act against the victim who is a child or juvenile by assault or intimidation.

【Fact of Grounds for Attachment】

Defendant A is recognized to have committed a sexual crime on at least two occasions and committed a sexual crime against a person under the age of 19. However, Defendant A is also recognized to have satisfied the requirements of Article 5(1)3 and 4 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders, and to have the risk of repeating a sexual crime.

Summary of Evidence

1. Defendants’ respective legal statements

1. A written statement of D;

1. Stenographic records;

1. On-site photographs and E photographs;

1. A inquiry report, such as criminal records;

1. Investigation report (verification of suspect A's past records);

1. A written investigation before a request is filed against Defendant A;

1. The risk of recidivism of sexual crime and recidivism as indicated in the judgment: (i) around September 15, 2013, prior to the instant crime, Defendant A is likely to recommit a sexual crime by taking into account the following circumstances: (ii) around September 15, 2015, the Seoul High Court sentenced a two year and six months of imprisonment for a crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (rape, etc.) at the Seoul High Court on September 15, 2015; and (iii) Defendant A again committed the same crime against a child or juvenile, even though he was convicted of a sexual crime and was under suspension of execution; and (iii) other circumstances before and after the instant crime, etc., the Defendant is deemed to have a risk of repeating a sexual crime.

Application of Statutes

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

A. Defendant A

Article 7(2)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse (a point of similarity with children and juveniles), Articles 17 and 7 of the Act on the Protection and Support of Missing Children, Etc., Article 30 of the Criminal Act (a point of the act of protecting children and juveniles, and choice of imprisonment)

B. Defendant B

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act, Articles 17 and 7 of the Act on the Protection and Support of Missing Children and Juveniles against Sexual Abuse, Article 30 of the Criminal Act (the point of protecting a person without reporting, the choice of imprisonment)

1. Aggravation for concurrent crimes;

A. Defendant A

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [aggravating concurrent crimes within the scope of adding up the long-term punishment of two crimes prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse (similar Acts)]](b)

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (within the scope of adding up the long-term punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse, which is heavier than the punishment)

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An order for disclosure and notification;

Defendant A: The main sentence of Article 49(1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the main sentence of Article 50(1) and Article 7(1)1 of the Act on the Lapse of Punishment, etc.

1. An employment restriction order;

The main sentence of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and the main sentence of Article 59-3(1) of the Act on Welfare

1. Defendant A subject to an order to attach an electronic tracking device and to comply with such order: Exemption from the order to disclose and notify a specific criminal, under Article 5 (1) 3 and 4, Article 9 (1) 2 (a) of the Act on Probation and Electronic Monitoring, Etc., Article 9 (1) 3 and 4, Article 9-2 (3) and (1) 3, and Article 9-2 (1) 3;

Defendant B: Defendant B: (a) 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 fact that the Defendant has no record of punishment for a sexual crime, the fact that the registration of personal information alone appears to have an effect to prevent recidivism by Defendant; and (b) the Defendant’s age, occupation, family environment, and social relationship; (c) details, developments, and results of the instant crime; (d) the prevention of sexual crimes subject to registration that may be achieved due to an order to disclose or notify; (e) the effect of the protection of victims of sexual crimes subject to registration; and (e) the degree of disadvantage and anticipated side effects of the Defendant’s entry due to an order to disclose or notify the personal information, the Defendant’

Where a conviction is finalized on the facts constituting a crime in the judgment, the Defendants are 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 they are obligated to submit personal information to the competent authority pursuant to Article 43 of

Meanwhile, in the case of Defendant A, the period of registering personal information against the Defendants is 20 years in accordance with Article 45(1)2 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and 15 years in accordance with Article 45(1)3 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes in the case of Defendant B. In full view of the crimes causing the registration of personal information against the Defendants and the crimes causing the registration of personal information, the nature of the crimes and the severity of the crimes, etc., in accordance with Article 45(4) of the Act on

Since the period of registration of personal information is no longer necessary to determine a short-term period than that according to the sentence, the period of registration of personal information should not be shortened.

Reasons for sentencing

1. Defendant A

(a) Scope of applicable sentences under law: Imprisonment with prison labor for up to 5 years;

(b) Scope of recommendations based on the sentencing criteria;

1) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (similar act)

[Determination of Punishment] The General Criteria for Sex Offenses A. Rape (subject to 13 years of age or older) by Relatives / Special Rape by Relatives (Type 2)

【Special Convicted Person】

[Scope of Recommendation] 5 years to 8 years

2) The sentencing criteria for violation of the Act on the Protection and Support of Missing Children, etc. are not set.

3) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than five years (a concurrent crime with a crime for which the sentencing criteria are not set);

(c) Determination of sentence;

The Defendant, while making a confession to commit the instant crime, is divided.

However, even though the defendant was subject to criminal punishment for the same crime, he committed the crime of this case against the victim who was under the suspension of execution, and the nature of the crime is heavy.The mental shock and physical suffering of the victim was very high due to the crime of this case, and the defendant did not receive the letter from the victim.

The sentencing factors as above, the scope of recommendations according to the sentencing guidelines set by the Supreme Court Sentencing Committee, and the defendant's age, character and conduct, environment, and the circumstances of crimes, etc. shall be comprehensively considered and determined as ordered by the Supreme Court Sentencing.

2. Defendant B

(a) Scope of applicable sentences under law: Imprisonment with prison labor for up to 2 years up to 35 years;

(b) Scope of recommendations based on the sentencing criteria;

1) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent Act by Compulsion)

[Determination of Punishment] The general standard of the crime of indecent act by compulsion (the subject of 13 years of age or older) (the subject of 2 years of age or older) / Special indecent act by indecent act by compulsion, such as by blood relatives, etc.

【Special Convicted Person】

[Extent of Recommendation] One year and eight months from August to three years [including indecent acts by deceptive means and by force against juveniles (including indecent acts by indecent means and by force against juveniles) are included in two types, but the upper and lower limits of the scope of sentence shall be reduced to 2/3];

2) The sentencing criteria for violation of the Act on the Protection and Support of Missing Children, etc. are not set.

3) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for at least one year and eight months (a concurrent crime with a crime for which the sentencing criteria are not set).

4) Scope of the modified sentencing according to the applicable sentencing range: Imprisonment with prison labor for not less than two years (in cases where the lower limit of the sentencing range recommended by the sentencing criteria is inconsistent with the statutory lower limit of the applicable sentencing range, it shall be based on the statutory lower limit of the applicable sentencing range);

(c) Determination of sentence;

The defendant has been led to the confession of the crime of this case, and has no record of criminal punishment.

However, the defendant committed an indecent act on the part of the victim's sensitive body while taking the victim's age, and the nature of the crime is heavy.

The crime of this case shows that the victim was suffering from mental shock and physical pain, and the defendant did not receive a boom from the victim.

The sentencing factors as above and the sentencing guidelines set by the Supreme Court Sentencing Committee shall be determined as ordered by comprehensively taking into account all the sentencing conditions shown in the arguments of this case, including the scope of recommendations according to the sentencing guidelines as set by the Supreme Court Sentencing Committee, the age, character and conduct

Judgment on the request for probation order against Defendant A

In addition to requesting the Defendant to issue an order to attach an electronic device, a prosecutor also requested probation after the completion of the execution of a sentence under Article 21-2 of the Act on the Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders. However, a person subject to an order to attach an electronic device, as the Defendant, is subject to the execution of an order to attach an electronic device immediately before the completion of the execution of the sentence pursuant to Article 13(1) of the above Act, and is obliged to put the Defendant on probation under the Act on Probation, etc. during the period of attachment pursuant to Article 9(3) of the above Act. Thus, the Defendant’s request to issue a probation order is dismissed pursuant to Articles 21-8 and 9(4)1 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, as there is no benefit to separately claim the probation

1. Summary of request;

The Defendant committed a sexual crime against a person under 19 years of age as stated in the facts constituting the crime in the judgment, and comprehensively considering all the circumstances, the Defendant is highly likely to recommit a sexual crime. Therefore, the Defendant’s request for an attachment order of an electronic tracking device under Article 5(1)4 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders and a probation order after the completion of the execution of a sentence under Article 21-2(1)1 of the same Act.

2. Determination

A. The risk of recidivism of a sexual crime as prescribed by Articles 5(1) and 21-2 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely with the possibility of repeating the crime, and that there is a reasonable probability that the Defendant may injure the legal peace by committing a sexual crime again in the future. The risk of recidivism of a sexual crime ought to be objectively determined by comprehensively assessing various circumstances, including the Defendant’s occupation and environment, the criminal conduct prior to the crime, the motive, means, circumstances after the crime, and the outline of the crime (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 2010; 2010Do4444, Feb. 1

B. Examining the following circumstances acknowledged by the evidence duly adopted and examined by this court in light of the aforementioned legal principles, and the Defendant’s age, character and conduct, environment, and circumstances after the crime, the evidence presented by the prosecutor alone cannot be readily concluded that the Defendant is highly likely to injure the legal peace by committing a sex crime again in the future.

1) The defendant has no criminal records of the same kind.

2) The sentence imposed on the Defendant, the registration of personal information, orders to complete sexual assault treatment programs, and employment restriction orders are likely to have the effect of preventing recidivism by the Defendant, promoting rehabilitation into society, and correcting character and behavior.

3) According to the Defendant’s prior investigation report, as a result of the application of KSORAS to the Korea-type sex offender, the risk of recidivism was assessed at 10 points in total at 10 points in the middle (7-12 points). As a result of the application of the COR screening tool (PC-R), the risk of recidivism of sex offense was assessed at 5 points in total at 0-6 points in the lower (0-6 points). The investigator who conducted the prior investigation on the claim presented an opinion that the Defendant needs to be careful in the attachment of the location tracking device.

4) Other evidential materials that can be assessed as having high risk of preventing sexual assault against unspecified persons in the future cannot be recorded.

3. Conclusion

Therefore, the Defendant’s request for attachment order and probation order are without merit, and each of them is dismissed in accordance with Articles 9(4)1 and 21-8 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders.

Appointment of presiding judge and appointed judge;

Judges Ohyle

Judges Han Han-so

1) A Rape Rape (including deceptive schemes, malutical and similar sexual intercourses) is included in two categories.