(영문) 수원지방법원 2019.8.22. 선고 2019고합217 판결

A person subject to an order to attach an electronic device shall be placed on probation for five years, and matters to be observed in the attached Form shall be imposed.

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

Reasons

Criminal facts and facts constituting the probation order

【Criminal Facts】

2019Gohap217

From January 25, 2018, the Defendant and the person subject to an application for an attachment order (hereinafter referred to as the “Defendant”) were to teach with the victim B (the age of 35) from around January 25, 2018, and decided on April 19, 2019. Thereafter, on April 25, 2019, the Defendant requested the victim to return again to the victim at the D Child Care Center located in C in C in lusia where the victim works. However, the Defendant requested the victim to return again at around 16:30 on April 25, 2019, but it was investigated as a suspicion of special injury by taking care of the victim’s face, which is an object dangerous to the victim’s refusal. Accordingly, on May 2, 2019, the Defendant tried to return to the victim at his own residential premises, and attempted to kill the victim on the ground that the victim did not refuse the request.

The Defendant, around May 2, 2019, purchased and kept in his/her dwelling in advance at his/her own dwelling on and around May 2, 2019, took a knife knife to the knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife that knife knife knife knife knife that knife knife knife.

Accordingly, the defendant prepared to kill the victim.

" 2019, 250"

피고인은 2019. 4. 25. 16:30경 화성시 C에 있는 전 여자친구인 피해자 B(여, 35세)이 일하는 D어린이집 놀이터에서 피해자에게 다시 만나줄 것을 요구하였으나 피해자가 이를 거절하자 화가 나 손으로 피해자의 얼굴 부위를 때리고, 이에 피해자가 피고인을 피해 어린이집 원장실로 들어가자 원장실까지 뒤쫓아 들어온 후 그곳에 있던 위험한 물건인 레인스틱(전체길이 70cm, 지름 5cm, 나무 재질)으로 피해자의 얼굴 부위를 1회 때리고, 그 후 "주방 어딨냐, 칼 어딨냐"라고 말하는 등 피해자를 위협하여 피해자에게 약 2주간의 치료가 필요한 우측 안면부 타박상 등을 가하였다.

[Judgment of the court below]

The Defendant, as stated in the facts constituting the crime, is likely to recommit the murder crime.

Summary of Evidence

"2019 Gohap217"

1. Partial statement of the defendant;

1. Each police statement made to G, B, and H;

1. Records of seizure, the list of seizure, and photographs and materials of seized articles;

1. Data to capture a suspect A video of the crime;

1. A table for 112 reported cases processing;

1. Investigation report (verification of the details of purchase by a suspect of saunch knife and Cheong tape) and accompanying materials;

" 2019, 250"

1. Defendant's legal statement;

1. The police statement concerning B;

1. A written statement of I;

1. Photographs;

1. A written diagnosis of injury;

"Risk of Reoffending at the Time of Sales"

Comprehensively taking account of the following circumstances recognized by each evidence and a written investigation before the claim, and other circumstances revealed in the pleading, it is recognized that the defendant is likely to recommit the murder crime.

① As a result of the adult evaluation of the risk of recidivism (KORAS-G), the defendant's total score 13 points constitutes an "high risk of recidivism", and as a result of the evaluation of the PC-R, the defendant's risk of recidivism at 12 points in total is considered as an "interim risk of recidivism", and accordingly, the defendant's comprehensive risk of recidivism at 12 points in total is evaluated as an "high or middle level".

② As a result of the preliminary examination (AUDIT) on the Defendant’s interference with alcohol use, the Defendant is at the level of ' alcohol addict’ out of 40 points in total. The Defendant was able to drink daily on the grounds of depression, influencelessness, etc., and the Defendant was able to engage in any dynamic behavior that is not intended under the influence of the psychological examination (MPI-II, SCT) or to express decentralization as soon as he/she is unlikely to meet his/her desire. Therefore, there is a possibility that the Defendant might avoid murdering in a specific situation similar to this case.

③ On April 25, 2019, the Defendant committed the crime of special injury against the victim, and was arrested in the act of committing the crime, and subsequently arrested the victim to refuse to recover the victim. On the same day, the Defendant was released on the same day. On the 28th day of the same month, the Defendant voluntarily attended the police station to find the victim that she would drink at present. The same shall apply to her efforts to find out the victim. The police made a statement to the effect that she cannot control her well. The Defendant was able to take emergency hospitalization measures to J Hospital with the consent of the Defendant due to the fear of retaliation against the victim. On May 1, 2019, the three days after the voluntary discharge at the above hospital, the Defendant continued to drink alcohol after the voluntary discharge, while finding out the victim again on the next day, in view of the circumstances leading up to the crime of this case, the risk of recidivism of the Defendant’s punishment after the execution of the crime of this case, and it is necessary to recognize the Defendant’s probation measures after the completion of recidivism.

Application of Statutes

1. Article applicable to criminal facts;

Articles 255 and 250(1) of the Criminal Act, Articles 258-2(1) and 257(1) of the Criminal Act (the point of special injury)

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 with punishment prescribed for a crime of special injury heavier than punishment)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Issuance of probation orders and matters to be observed;

Articles 21-3(2) and (1), 21-2 subparag. 3, 21-4(1), 21-2(1), and 9-2(1)3, 4, and 5 of the Act on Probation, Electronic Monitoring, etc. of Specific Criminal Offenders (where a request for attachment order is dismissed, the necessity of probation is recognized, and the probation order is issued ex officio).

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

With respect to the preparation for murder, the defendant did not have any intention to kill the victim or to prepare for murder.

2. Determination

In light of the following circumstances acknowledged by the court's duly adopted and examined evidence, i.e., ① the Defendant purchased a blade from 33 cm in total length at the time of the occurrence of the instant case to 20 cm in its entirety, and prepared tools for committing murder by reducing Cheong tape on the boundary of knives and knives, etc. to prevent the other party from sustaining knives, and ② the Defendant made telephone conversations with the victim immediately before finding the victim at the time of the instant case, and the victim called 'the victim's halog. The Defendant did not want to find the knives of death? The Defendant’s assertion that knives knives and knives of the Defendant were 20 days before being arrested at the scene of the instant case, and that 8 days after being asked about knives of the Defendant’s knives.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for one year to 15 years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) A crime under subparagraph 1;

[Determination of Punishment] 02. Special Bodily Injury, Bodily Injury, Bodily Injury (Type 1)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, 6 months to 2 years of imprisonment

(b) Second offense: The sentencing criteria are not set;

(c) Scope of recommending punishment based on the standards for handling multiple crimes: At least six months of imprisonment (limited to the lowest limit of the sentencing range for the crimes for which the sentencing criteria are set, since crimes for which the sentencing criteria are set and those for which no sentencing criteria are set are concurrent crimes in the former part of Article 37 of the Criminal Act,

(d) Scope of recommendations modified according to applicable sentences: Imprisonment with prison labor for not less than one year (in cases where the scope of sentences recommended by the sentencing criteria is inconsistent with the scope of applicable sentences in law, the scope of applicable sentences in law shall depend upon the scope of applicable sentences);

3. Determination of sentence: Imprisonment for 2 years and 6 months; and

When the Defendant commits a special injury by taking advantage of the face of a female-friendly arrest victim, which is a dangerous object, in a shot, the Defendant prepared murder by finding the victim with a knife who had been prepared in advance to kill the victim again within the same week and having a knife. The crime is very very rough and hot. The degree of damage suffered by the victim is not somewhat weak, and the victim is punished by the Defendant. The Defendant has the history of having been punished twice by the same violent crime and having been subject to juvenile protective disposition twice.

However, the punishment as ordered shall be determined by comprehensively taking into account all the sentencing conditions shown in the arguments of this case, such as the defendant's age, character and conduct, environment, motive and circumstance of the crime, means and consequence, etc., as well as the circumstances after the crime, etc., that the defendant led to a confession of some of the crimes (special injury), the fact that the crime of murder was committed in favor of the fact that the crime of murder was committed in preparation.

Judgment on the request for attachment order

1. Summary of request;

The defendant is highly likely to recommit murder in light of the criminal records of the defendant, the Criminal Procedure Act, the anti-social personality disorder with the defendant, and the alcohol addiction symptoms as stated in the judgment.

2. Determination

A. In order to issue an order to attach an electronic tracking device pursuant to Article 5(3) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”), it is recognized that the person subject to the request to attach an electronic tracking device has a risk of recommitting the future homicide. Here, “risk of recommitting the homicide” means that the possibility of recommitting the homicide is insufficient enough, and that the person subject to the request to attach an electronic tracking device has a considerable probability of undermining legal peace by committing the homicide again in the future. The existence of the risk of recommitting the homicide should be determined objectively by comprehensively assessing all the circumstances, such as the occupation and environment of the person subject to the request to attach an electronic tracking device, the conduct prior to the homicide, motive, means, circumstances after the homicide, etc. of the homicide, and such determination should be determined at the time of a judgment in the future (see, e.g., Supreme Court Decision 2012Do289, 2012Do5251, May 10, 2012).

In addition, since the attachment order of an electronic tracking device under the Electronic Monitoring Act is much more restrictive to the freedom of body and the freedom of privacy than the case of the probation order after the execution of the sentence, the risk of recidivism is more strict than the case of the probation order.

B. In light of the following circumstances acknowledged by the record, it is difficult to readily conclude that the evidence submitted by the prosecutor alone is highly probable to injure legal peace by committing murdering in the future to the extent that it is necessary to impose an electronic tracking device attachment, in addition to ordering the Defendant to be put on probation after the completion of the sentence.

① In relation to murder crime, the risk of recidivism, which is considered as the requirement for an attachment order under the Electronic Device Attachment Act, is the risk of recidivism of 's 's homicides' rather than the risk of recidivism in general for violent crimes. The result of the adult evaluation of the risk of recidivism (KORAS-G) by the Defendant is the level of 'high risk of recidivism' as a result of the evaluation of the degree of adult recidivism (PCL-R) by the Defendant, and the comprehensive risk of recidivism is the intermediate level and the comprehensive risk of recidivism is the level of 'high risk of recidivism' or 'high risk of recidivism. However, the evaluation scale and the selection scheme are merely the steps to determine the normal risk of recidivism. Therefore, it is difficult to fully establish the risk of recidivism of the Defendant’s homicides only with the result, and the evaluation value is not a higher level only within the corresponding section.

② The instant crime is not a crime of undiscriminatory homicideing the so-called 'brue' crime against many unspecified persons, but rather a crime involving a female-friendly homicide. In light of the motive and circumstance of the crime, the nature of the crime, etc., it is difficult to deem that the tendency of the Defendant to commit the murder itself is recognized.

③ Although the Defendant had been punished twice as a violent crime prior to the instant crime, it is difficult to readily conclude that he/she had a sexual inclination immediately on the ground that he/she had a considerable difference in the context of an unlawful act as well as an unlawful act, on the ground that he/she had a violent inclination.

④ The crime of preliminary crime of murder in this case was committed in the state of being committed in the state of being committed, and the result of the preliminary examination (AUD IT) on the Defendant’s alcohol-using disorder falls under the level of “ alcohol addict” out of 40 points, and if the Defendant is aware of and properly treated, the risk of recidivism would be reduced if the Defendant was given treatment. In addition, the Defendant is obliged to lead a prison life for a considerable period of time, and the Defendant is able to expect improvement of the character and violent tendency in the process. Furthermore, it appears that ordering the Defendant to be put on probation after the completion of the sentence, thereby preventing recidivism and correcting distorted impulses and wrong personality and behavior.

3. Conclusion

Thus, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Electronic Device Attachment Act as there is no ground.

Judges

Judges Kim Byung-chul

Judges Ansan-jin

Judges Kim Jong-hwan

Attached Form

[Attachment]

Matters to be observed

period of probation,

1. It shall not approach the victim B;

2. He/she shall complete each of 80 hours of violent therapy program and 80 hours of alcohol therapy program;

3. Any person who carries a deadly weapon or other dangerous object and does not drinking in excess of a specified quantity;

must be noted.

4. Mental medical counseling and treatment related to the control of alcohol and impulses shall be provided in good faith and the results thereof shall be regularly conducted;

must be submitted to probation officers.

5. To follow the direction of the probation officer concerning education, medical treatment and treatment programs to improve character and behavior.

(i) the end;

심급 사건

수원지방법원 2019.8.22.선고 2019고합217

-수원고등법원 2019.11.27.선고 2019노359

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