(영문) 서울중앙지방법원 2018.6.8. 선고 2017고합1210 판결

The defendant committed any of the following crimes under the state that he/she has a weak ability to discern things or make decisions due to his/her on-site illness:

1. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

On November 4, 2017, at around 08:45, the Defendant used the victim C (tentative name, 13 years of age) who was standing in front of Gwanak-gu in Seoul Special Metropolitan City, the Defendant committed an indecent act against the victim by forcing the victim to stop his/her suffering, by inserting his/her hand, and by deceiving the victim's negative part by inserting his/her hand, and caused the victim to suffer a buckbuckbuck and this part of this end.

2. Injury resulting from similar rape;

After committing the crime of the above 1. On the same day, the Defendant discovered the victim E (the 22 years old) who passed his seat in the front of Gwanak-gu in Seoul Special Metropolitan City (hereinafter referred to as 08:5 years old), brought the victim back to the future, followed by hand the victim by leading the victim with the vehicle in which the victim was dead and parked, and then threatened the victim by threatening the victim by threatening the victim to "bat off" and threatening the victim into the part of the victim, and inserting his hand into the part of the victim's drinking, and thereby, caused the victim to be knee-de-fel-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fe-fa-fe-fe-fe-fe-fa-fa

3. Special violence;

After committing the crime of the above 1.1. After committing the crime, the Defendant assaulted the Victim F (57 years of age) who was the victim F (13cc in length) who was the victim of the crime and was in possession of a dangerous object (13cc in length) as the victim flicked.

Summary of Evidence

1. Partial statement of the defendant;

1. Statement made by witnesses E in the third protocol of the trial;

1. Each legal statement of witness G, F, and H;

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

1. The application of Acts and subordinate statutes to the mobile channel of the suspect and place of the crime, the attachment of the report, all of the photographic materials on the scene of the crime, CD 1, 112 report processing slip, e-mail, photograph, and the table of request for appraisal;

1. Article applicable to criminal facts;

Articles 9 and 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act, Articles 301 and 297-2 of the Criminal Act, Articles 261 and 260(1) of the Criminal Act (a point of special assault)

1. Mitigation of mental disorders;

Articles 10(2) and 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso of Article 42 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse, which is the largest punishment]

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Exemption from orders to complete programs;

In light of the proviso to Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the proviso to Article 16(2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the defendant suffers from her early illness and thus it is difficult to expect the effect of recidivism due to his/her order to complete a program, and the fact that it is difficult to expect smooth implementation of a program

1. Exemption from an order for disclosure and notification;

The determination on the defendant and his/her defense counsel's assertion about the defendant and his/her defense counsel, in full view of the defendant's age, family relation, social relationship, the effect expected by the disclosure or notification order, the effect of preventing the second offense as stated in the argument in this case, and other various circumstances, such as the defendant's age, family relation, social relation, the effect expected by the disclosure or notification order, and the disadvantage and side effect of the defendant's personal information as stated in the argument in this case, it is reasonable to view that there are special circumstances where disclosure or notification of the defendant's personal information should not be disclosed or notified.

1. Summary of the assertion

A. In relation to the crime of bodily harm caused by rape, etc. (Rape, etc.) of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, the fact that the victim C play and was used on the following floor, but did not commit an indecent act by putting the victim C in a brush or a brush with his/her hand and her hand together with the victim C.

B. In relation to the crime of injury resulting from similar rape, there is a fact that the victim E’s shoulder is attached to the victim E, but there is no fact that the victim E leads the victim E with a vehicle or threatens to “be dead” and put the victim E into the part of the part of the victim by inserting the hand into the part of the victim. In relation to each of the above crimes, the victim C and E’s wife do not constitute an injury extremely minor.

D. In relation to the crime of special assault, even if the defendant did not display a spoke to the victim F, it does not constitute violence in special assault even if the defendant had a spoke to the victim F.

2. Determination

A. Judgment on the assertion on crimes committed against the Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.)

1) The conviction in a criminal trial ought to be based on evidence with probative value that enables a judge to have the conviction that the facts charged are true beyond a reasonable doubt. The term “reasonable doubt” refers not to any doubt or incomprehion, but to any reasonable doubt as to the probability of a fact that is not inconsistent with the facts needed for proof in accordance with logical and empirical rules. Therefore, a doubt based on conceptual or abstract possibility is not included in a reasonable doubt. A judge is not necessarily required to determine whether to prove the facts of a crime only as direct evidence, but may be determined as having proven the facts of a crime in accordance with logical and empirical rules by comprehensively examining direct evidence and indirect evidence (see, e.g., Supreme Court Decision 2016Do1526, Jan. 25, 2017).

2) The following circumstances that can be recognized by the evidence mentioned above are as follows. In other words, in this court, F made a statement that the victim C left the bucks in the process of breaking the victim C, and the Defendant appeared to have been present at the scene of the bucks. F’s statement does not appear to be specific and reasonable parts of the statement, particularly unreasonable, and it does not appear to have distortedly expressed the circumstances such as finding the fact that the victim did not have been present, and there is no circumstance to deem that F did not have any motive or reason to make a false statement. Since F’s statement is very high credibility, the victim C was consulted with her mother, etc., and provided medical support to the victim, and the victim C was consulted with her mother, etc., and received counseling at the time, and received counseling treatment at the J, and the victim took part of the victim’s injury to C, and the Defendant’s assertion that the victim was found to have been found to have been detected by the victim’s male 1, a male kbuck.

B. Judgment on the assertion on the crime of injury resulting from similar rape

1) Examining the following circumstances, which can be recognized by each of the evidence mentioned above, in light of the legal principles as stated in Paragraph A (a) above, the Defendant and the defense counsel are not allowed to accept this part of the claim, on the ground that: (a) the Defendant could sufficiently recognize the fact that he gets the victim E to get the victim E and threatened the victim E with "to be dead"; and (b) put the victim E into the part of the victim E by inserting his hand; and (c) said,

A) The victim E is consistently stated in detail and with regard to the circumstances leading up to the crime of injury resulting from similar rape in the instant case, the details of assault and intimidation by the Defendant, the victim’s response thereto, and the circumstances after the commission of the crime. The contents of the statement include especially unreasonable parts or statements in itself, and include situations in which it is difficult to keep the victim E without direct experience. Moreover, there is no motive or reason to keep the damaged facts out of falsity or make a false statement in order to mislead the Defendant E. Therefore, the victim’s statement is very high in credibility.

B) G listen to the sound of the victim E, and discovered the victim E and the Defendant who was on the floor above the floor, and led to the suppression of the Defendant. As such, in light of the process of finding the victim E and the Defendant at the time of discovery or discovery, it is difficult to understand the assertion that the Defendant was merely putting the shoulder of the victim E in light of the victim E and the Defendant’s appearance at the time of discovery or discovery.

C. Determination as to the assertion on injury to each crime committed in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Death Resulting from Rape, etc.) and causing similar rape

1) In the crime of indecent act by compulsion, injury refers to changing the victim’s physical health condition to a poor condition and causing trouble in his/her living function. If the victim’s bodily condition is extremely minor and the victim’s bodily condition does not need treatment without treatment and the victim’s daily life can be naturally cured upon the lapse of time without treatment, it cannot be deemed that the victim’s physical health condition was changed, or that his/her life function was hindered, and thus, it cannot be deemed that the victim’s bodily condition was damaged or that the victim’s physical condition was hindered (see, e.g., Supreme Court Decision 2009Do1934, Jul. 23, 2009). However, the above grounds for appeal are premised on the premise that there was no assault or intimidation to suppress the victim’s resistance, or that the victim’s physical condition was equal to that of the injury ordinarily occurring in his/her sexual act according to an agreement, if such excess is caused by assault or intimidation, the victim’s physical condition should be determined as a result of such change, and whether the victim’s physical condition should be objectively 205.

2) In light of the following circumstances, it is reasonable to view that the injured party C’s wife suffered is an injury to the crime of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) by changing the physical health condition and impeding the function of life of the injured party C.

A) According to the photographs taken immediately after the crime of indecent act by compulsion in this case, the victim C was on the part of Ema, knenee, and buckbucks, but it is difficult to view that the size and degree of the situation are minor. In particular, in the case of the inspection of the parts of Ebbucks and bucks, it is difficult to view that the victim C was on the part of Ebbucks and bucks as an injury that may normally

B) The Defendant: (a) committed an indecent act by force by force by force by putting the victim C into the floor; (b) putting the victim’s fingers in the body of the victim; and (c) the victim’s age, gender, physical strength, and the Defendant’s age.

Considering gender, physical strength, etc., the defendant can be deemed to exercise a very strong force to suppress the victim's resistance. In light of the above circumstances, the above circumstances seems to have occurred through the defendant's above assault in the course of suppressing the victim's resistance. 3) In light of the following circumstances acknowledged by each evidence mentioned above, it is reasonable to deem that the victim's wife E suffered suffered injury due to the change of the victim's physical condition and the obstruction of the victim's function, and thus, it constitutes injury caused by similar rape.

A) In the case of photographs taken immediately after the crime of causing similar rape in this case, the victim E suffered kne pere pere pere pere pere pere pere pere and pere pere pere pere pere pere pere pere (the victim sent the pictures to the investigation agency after approximately a week from each of the crimes in this case by affixing the door of kne pere pere pere pere pere pere with a photograph. In the case of kne pere pere, it can be sufficiently understandable in light of the empirical rule to place a hole after more than more than more than more time after being faced with the face pere pere pere pere pere pere.).

B) The Defendant got the victim E from the victim’s suffering, leading the victim’s body behind, and breaking the victim’s fingers into the part of the victim’s body. In light of such circumstances, the Defendant exercised a considerable strength to suppress the victim. In light of the above circumstances, the Defendant appears to have been in the process of suppressing the victim’s resistance by the aforementioned assault.

C) Although the victim was issued a written diagnosis or did not receive the hospital treatment, this appears to have been due to personal circumstances, such as the victim’s studies, not to require any particular treatment (the victim stated in this court that he/she did not receive the hospital treatment on the ground of his/her studies, etc.). The victim stated that he/she purchased a tobacco and gave treatment by purchasing it.

4) Therefore, we cannot accept this part of the Defendant’s defense counsel’s assertion.

D. Judgment on the assertion about the crime of special assault

1) The following circumstances that can be recognized by each of the evidence mentioned above, namely, the victim F stated that the victim F had observed the crime under paragraph (1) of the criminal facts stated in this Court in this Court and followed the defendant to the victim F. In light of the fact that the contents of the statement are not specific and unreasonable, and there is no specific and unreasonable part, and the victim’s motive or reason for the false statement, the credibility of the statement is high, and the defendant immediately went back to the crime under paragraph (1) of the criminal facts stated in the judgment and went back to the crime under paragraph (2) of the same Article, and even if he was forced to control by G during the crime under paragraph (2) of the same Article, the defendant still went to the crime under paragraph (1) of the same Article. In light of the fact that the defendant committed the crime under paragraph (1) of the same Article, it can be sufficiently recognized that he was able to display the victim F.

2) Meanwhile, violence in the crime of violence means the exercise of physical force against a person's body, and it does not necessarily require any physical contact with the victim. Thus, as seen in the victim’s breathing theory, in the event that a person was breathing or throwing away his hand or goods, even though the victim did not directly contact the victim’s body, it constitutes violence as an exercise of unlawful force against the victim (see, e.g., Supreme Court Decisions 2000Do5716, Jan. 10, 2003; 2008Do4126, Jul. 24, 2008). In light of the above legal principles, even if the Defendant’s breath did not directly contact the victim’s body, even if the Defendant’s act of breathing the breath in close vicinity to the victim F, it can be sufficiently recognized that the Defendant’s use of force against the victim F constitutes violence.

3) Therefore, we cannot accept this part of the Defendant’s defense counsel’s assertion.

1. Reasons for sentencing: Imprisonment with prison labor for a period of three years and six months from June to June 22;

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

(a) Crimes of causing bodily harm by rape, etc. in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

[Determination of Punishment] Where the result of an injury to a sex offense has occurred, the person who is not less than 13 years of age or not less than 13 years of age or not less than 2 years of injury

* descriptive standards: Juvenile indecent act by compulsion (including deceptive or indecent act by force)

【Specially Exemplarys / Mitigations : A mentally ill-incompetent (no one shall be responsible in person)

[Scope of Recommendation] Reduction Area, Imprisonment of 2 years to 5 years

(b) Injury resulting from similar rape;

[Determination of Punishment] Where the result of an injury to a sex offense occurs, he/she shall be sentenced to the category 2 (general rape) over 13 years of age or over.

* Short-Form : adult similar rape

【Specially Exemplarys / Mitigations : A mentally ill-incompetent (no one shall be responsible in person)

[Scope of Recommendation] Reduction Area, 2 years and 6 years to 5 years. Special violence is committed.

[Determination of Punishment] Types 6 (Special Violence in Habitual and Cumulative Crimes)

[Special Emotional Persons] Reductions: Cases where the degree of assault is minor (type 1, 6, and 7), and mentally ill-incompetents (no one shall be responsible)

[Scope of Recommendation] Special Mitigation, Imprisonment from February to February

(d) Scope of recommendations according to the standards for handling multiple crimes: Imprisonment with prison labor for two years and six months to seven years (the upper limit of the first crime + the upper limit of the second crime + the 1/2 + the upper limit of the third crime + the 1/3 (less than a month));

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○○ Unfavorable Circumstances: Each of the instant crimes was committed by the Defendant, who committed an indecent act against the victim C, who was a juvenile, committed an indecent act, committed a dangerous act against the victim F, who was witnessed the process, and driving away from the Defendant, and sustained the victim E by committing similar rape, and the crime is not good in light of the details and methods of the relevant crime. The Defendant did not take any measures to recover the victims’ damage, and did not have been taken from the victims.

The circumstances favorable to ○: there is no history of sex offense against the Defendant, and there is no criminal record exceeding the fine. The injury suffered by the victim C and E is relatively heavy, and the victim F did not have any direct contact with the victim due to the special assault of this case. The Defendant appears to have been in a state of mental and physical weak mind and body at the time of each of the instant crimes. The Defendant’s family members want to keep the Defendant from committing a new crime and wanting to keep the Defendant from committing a new crime.

Where a conviction becomes final and conclusive against a crime of bodily injury similar to that of a crime of violating the Act on the Protection of Children and Juveniles against Sexual Abuse (Rape, etc.) and a crime of bodily injury similar to that of a sexual crime subject to registration, the defendant is a person 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

Meanwhile, with respect to the defendant, a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act and the punishment is prescribed pursuant to Article 38 of the Criminal Act. The period for registering personal information resulting therefrom is 20 years pursuant to Article 45(1)2 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, considering the nature of each of the crimes in this case and seriousness of the crimes, it is not recognized that the period for registering personal information of the defendant is unreasonable, and therefore, the period for