(영문) 서울중앙지방법원 2019.3.22. 선고 2018고합1051 판결

From May 15, 2015 to February 16, 2017, the Defendant was hospitalized at C Hospital located in Dobong-gu Seoul Metropolitan Government, on December 2, 2016, and the victim D (the age of 11 at that time) who was hospitalized with the Defendant at the above hospital was interested in the Defendant, and had not yet been able to have sexual intercourse with the victim, taking advantage of the state where the victim’s age had not been properly equipped with sexual value and judgment ability.

1. Preparation of, rape in a minor;

A. On February 9, 2017, around 13:00, the Defendant: (a) 13:00, around C Hospital 5th floor, brought the victim (at that time, 11 years of age) into a nearby shower room; (b) took the victim’s chest into the influence of alcohol; and (c) took the victim’s chest out of the part of the victim’s body and lying the victim into the floor; and (d) put the victim’s chest into the part of the victim’s sound part.

B. At around 14:00 on January 2, 2017, the Defendant, at the third floor parking lot emergency stairs of the E-dong, Seoul Special Metropolitan City, Nowon-gu, for the victim (the age of 12 at that time), had the victim talk with his/her chest, let the victim go off his/her bar and be placed on the floor, and added his/her body to the part of the victim’s sound.

C. At around 16:00 on January 16, 2018, the Defendant, at the third floor parking lot of H points located in Gangseo-gu Seoul Metropolitan Government, had the victim walk the chest of the victim by hand, let the victim deviate from the bridge and clothes, and put the victim’s body into the floor, and inserted the victim’s breath on the part of the body.

Accordingly, the defendant has sexual intercourse with the victim under the age of 13 over three times.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Minor Rape);

On March 21, 2018, at least 13:30 on March 21, 2018, the Defendant stated that the victim (at the time 12 years of age) would have been infected with the emergency stairs in the third floor parking lot of the E-dong apartment in Seoul Special Metropolitan City, Nowon-gu, the victim would know about the patient's sexual intercourse, and that "I would know about the patient's sexual intercourse with four years of age." The Defendant forced the victim to resist the resistance of the drinking victim, who was aware of the width, and then put the victim's body above the victim's body out of the bar and the clothes, and inserted the victim's body into the part of the victim's sound. Accordingly, the Defendant raped the victim under the age of 13 by intimidation.

Summary of Evidence

1. Defendant's legal statement;

1. Statement of the police officer to I;

1. Records of statements made by victims;

1. A gene appraisal report;

1. Each investigation report (victim interview, suspect specific, and response to DNA appraisal requests);

Application of Statutes

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

Articles 305 and 297 of the Criminal Act, Article 7(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 297 of the Criminal Act (the point of rape of minors under the age of 13, the choice of limited imprisonment)

1. Mitigation of juvenile offenses;

Articles 2 and 60(2) of the Juvenile Act, Article 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be applicable to concurrent crimes resulting from a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Minor Rape under thirteen years of age)

1. Illegal punishment;

Articles 2 and 60(1) of the Juvenile Act

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. The proviso to Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (limited to cases where the defendant is a child or juvenile, as well as cases where the defendant is a child or juvenile, and orders to complete sexual assault treatment programs alone are deemed to have the effect of preventing recidivism, and there are special circumstances where disclosure and notification of the defendant's personal information shall not be disclosed or notified in full view of the side effects and anticipated side effects of the defendant's suffering from disclosure and notification orders, the age, character

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Jan. 16, 2018)

Main text

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment with prison labor for a period from five years to June 22;

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

Since the defendant is a juvenile under the age of 19, the sentencing criteria shall not apply.

3. Determination of sentence;

The instant crime was committed by the Defendant at around 11 to 12 years of age, and was sexual intercourse with the victim whose sexual values have not been formed due to mental disorder, and eventually, rape was committed several times. As a result, the victim was pregnant and forced to undergo an operation for artificial abortion without any choice. The victim’s physical and mental suffering is so much as to be difficult. Furthermore, the number of crimes committed by the Defendant has reached several times, and is not short of the period of the crime. The Defendant was unable to receive a letter from the victim, and the damage has not been recovered. The Defendant was subject to a disposition to transfer the juvenile protection case two times against the minor under the age of 13 from 2014 to 2015, and the Defendant was also subject to a disposition to transfer the same crime against the minor under the age of 13, and even was prevented from committing a part of the instant crime at the protective facilities entrusted with the custody. This is a disadvantageous circumstance to the Defendant.

However, the mother of the defendant is the disabled in the third degree of intellectual disability, and the father of the defendant is also suffering from alcohol addiction. The defendant seems to have not been given adequate protection and rearing at home in the city where he was living together. The defendant is only 17 years of age, and the defendant is aware of his crime, and his mistake is divided. This is the circumstances favorable to the defendant.

In addition, the sentencing conditions specified in the records and arguments of this case, such as the defendant's age, character and conduct, environment, background and motive leading to the crime, circumstances before and after the crime, etc., shall be determined as ordered.

Registration of Personal Information

Where a conviction becomes final and conclusive on each crime in the judgment, the defendant is a person subject to registration of personal information in accordance with Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant to Article 43 of

Judges

The presiding judge and the deputy judge;

For judges:

Judges Gangseo-gu

Note tin

1) Although the indictment of this case contains the name of the crime as ‘compeachment of minors’, according to the applicable provisions of law corrected by the prosecutor at the first preparatory hearing of the facts charged and the first preparatory hearing of the case, the above statement appears to be a clerical error in the case. Therefore, it is evident that the case name was erroneous in the case name, so the case name was corrected in accordance with the proviso of Article 19(3) of the Rules on the

참조조문

-법원재판사무 처리규칙 제19조 제3항

-성폭력범죄의 처벌 등에 관한 특례법 제7조 제1항

-성폭력범죄의 처벌 등에 관한 특례법 제42조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제21조 제2항

-아동ㆍ청소년의 성보호에 관한 법률 제49조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제50조 제1항

-아동ㆍ청소년의 성보호에 관한 법률 제56조 제1항