2016Gohap570 Rape

2017. Attachment orders (Joint)

Persons whose attachment order is requested;

A person shall be appointed.

OO (prosecutions) O(s) O(s) , ○○ (Public Trial)

Law Firm ○

Attorney in charge ○○○

April 4, 2017

A defendant shall be punished by imprisonment for life.

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

Criminal facts

【Criminal Power】

Defendant and the person subject to a request for attachment order (hereinafter referred to as Defendant 2) shall be punished by imprisonment with prison labor for special robbery at the general military court of the Water Defense Headquarters on February 13, 1995 (the imprisonment with prison labor for a period of one year and six months by the competent authority)

on June 26, 1996, as a person who was sentenced to imprisonment and completed the execution of the sentence in an Ansan prison, and who was sentenced to imprisonment.

31. In the Daegu District Court, one year of imprisonment with prison labor for a violation of the Act on the Protection of Juveniles against Sexual Abuse (Good Offices, etc.), and the said judgment became final and conclusive on November 8 of the same year.

[Criminal Facts]

피고인은 1998. 10. 27. 13 : 20경 서울 ○○구 ○○동에 있는 ▲▲ 아파트 ○○○○ 동○○○○호 피해자 B의 주거지에서, 생활정보지인 ' 벼룩시장 ' 에 아파트전세 매물로 광고된 위 주거지를 둘러본다는 명목으로 방문하여 전세보증금 감액이 가능한지를 문의하였다가 피해자가 " 보증금도 없이 집을 보러 다니느냐. " 고 말하자 자존심이 상한다는 이유로 밖으로 나왔으나 더욱 화가 나 마치 계속하여 집을 보는 것처럼 가장하여 다시 위 주거지 안으로 들어간 후, 피해자에게 " 씹할, 왜 말을 그딴 식으로 해 " 라고 말하며 주먹과 발로 피해자의 안면부 등을 수회 때려 피해자가 엎어진 자세로 바닥에 쓰러지자 피해자를 강간하기로 마음먹고 그곳 방안에 있던 넥타이와 허리끈으로 피해자의 손발과 입을 결박하여 반항하지 못하게 하고 하의를 벗겨 피해자를 1회 간음하고, 그 과정에서 피해자가 몸부림을 치며 저항을 하자 그곳 방안에 있던 가죽 허리띠를 허리에 매듯 버클에 결속하는 방법으로 피해자의 목을 묶은 다음 피해자의 목부위에 묶여 있던 위 허리끈과 가죽 허리띠를 피해자의 뒤쪽에서 손으로 강하게 잡아당겨 그 자리에서 경부압박에 의한 질식으로 피해자가 사망하게 하였다 .

Accordingly, the defendant raped the victim and killed the victim in the process.

Summary of Evidence

1. The defendant's partial statement in the first trial record;

1. Statement by the prosecution against C;

1. Each request for appraisal, each report on genetic analysis and appraisal, and each report on autopsy and appraisal;

1. Each investigation report (related to the estimated time of crime through the details of CCTV images of the suspect, and the details sent by the suspect to the victim using public telephones, and the counter investigation of autopsys);

1. On-site map and on-site photograph;

1. Each existing country under subparagraphs 1, 2, and 3 of this paragraph;

1. Previous convictions: Criminal references, investigation reports (verification of the date of release from court and attachment of judgment), probation records, and written judgments;

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

In order to suppress a victim’s resistance, which is up to the right angled either a swayt or a swayt of the victim, during rape, the Defendant swayt the victim’s swayt. However, the Defendant intentionally did not kill the victim, and during this process, the victim may die.

of this section. The Corporation did not have any knowledge.

2. Determination

A. Relevant legal principles

The intent of murder does not necessarily require the purpose of murder or the planned intention of murder, but it is sufficient to recognize or anticipate the possibility or risk of causing the death of another person due to his own act, and its awareness or prediction is not only conclusive but also a so-called willful negligence. In a case where the defendant asserts that there was no intention of murder or assault at the time of committing the crime, and that there was only the criminal intent of murder or assault, whether or not the defendant was guilty of murder at the time of committing the crime shall be determined by taking into account the objective circumstances before and after committing the crime, such as the background leading up to committing the crime, motive, existence of the prepared deadly weapon, type, method of attack, part of the attack, degree of the possibility of causing the death, etc. (see Supreme Court Decision 2012Do1342, Dec. 27, 2012, etc.).

B. Specific determination

In full view of the following circumstances that can be recognized by the evidence duly adopted and examined by this court, it is reasonable to view that the Defendant was strongly deprived of the victim’s sprink and spacker belt in order to suppress the victim’s resistance, and that the victim died, and that there was an intentional murder of the Defendant. Accordingly, the Defendant and the defense counsel’s above assertion is not acceptable.

1) As a result of the autopsy against the victim, the National Scientific Investigation Agency determined the victim’s private person as a mechanical quality test, and as a result, it was based on the fact that the victim’s private person appears not to have any illness or credit to be considered for the private person differently from the fact that the victim shows a light string of light, light fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial flus

2) In the event the Defendant, after cutting down the leather belt in the item of the victim’s body, was already involved in a situation where it is difficult for the victim to resist because he was forced to satisf and sat down with the satisf, and even if satisfed with the satisf and sat, the Defendant seems to go against the above act with the intent to suppress the victim’s resistance, in light of the fact that the victim was strongly laid down with the satisf and sats at the same time for a considerable amount of time.

3) At the time of the prosecutor’s investigation, the Defendant stated that the Defendant continued to streke the victim’s resistance from the beginning of suppressing the victim’s resistance until the end of the situation. In addition, the autopsy presented the opinion that the victim’s strekes, etc. do not come to force at once, and continuous force occurred, and that the victim’s strekes, etc., and that the victim’s strekes and strekes continuously occur even after the victim’s death and death, and that the strekes are likely to occur. In light of this, the Defendant appears to have been strongly affected by the victim’s strekes and strekes for a considerable period of time to the extent that the strekes and strekes of the victim’s strekes were to occur, and in such case, it is highly probable that the strekes caused by pressure were highly likely to occur, and that the Defendant’s death was sufficiently aware or foreseeable as a result of the examination.

4) The defense counsel did not find out in the latter part of the documentary examination of the victim that there was no apparent trace of the fact.

The Defendant, on the basis of the content (No. 1, right 291 of the investigation record), asserts that the victim’s resistance was caused the death of the victim by taking advantage of his/her brupted force in the process of suppressing the victim’s resistance. However, according to the above autopsy report, the victim’s brupt and right side appears to be shake (No. 1, right 299 pages of the investigation record), but the remaining brush is due to the Defendant’s bruding of his/her brupt and bruds that were bound by the victim’s brush and bruds that were strongly laid down on the part of the victim’s brupted part.

Application of Statutes

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

Article 301-2 of the former Criminal Act (wholly amended by Act No. 11574, Dec. 18, 2012); the first part of Articles 301-2 and 297 (Selection of Life Reserve)

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act / [the crime of rape and the violation of the Act on the Protection of Juveniles from Sexual Abuse (Good Offices, etc.)]

1. Scope of legal penalty: life imprisonment;

2. Non-application of the sentencing criteria;

[Scope of Recommendation] Type 4 (Murder of Serious Crimes) Basic Area (at least 20 years, Weapons)

3. Determination of sentence;

The Defendant committed a cruel crime against the victim by rapeing and killing the victim on the ground that the victim made the victim aware of her self-esteem. The Defendant recognized all the remaining facts except for murder during his/her own crime, and needs to take account of equity in cases where the Defendant concurrently ruled a violation of the Act on the Protection of Juveniles from Sexual Abuse (Good Faith, etc.). However, even so, human life is absolute because it is impossible to recover if the victim’s life is a human being with dignity and is lost once again, and what kind of it cannot be altered. The Defendant’s act of infringing upon it cannot be used for any reason. The victim who did not have any error due to the Defendant’s crime of this case was born under extreme pain, fear and sense of shame, and that his/her bereaved family members were unable to fully recover from the victim’s bereaved family members. In particular, the Defendant’s 5th grade of elementary school and his/her mother, who was the victim’s her mother, did not suffer from mental distress and economic harm until now.

The statutory punishment for the crime of murder of this case, which is a serious crime, is heavier than that for general murder as a death penalty or life imprisonment. The Defendant again committed the crime of this case within 3 years after the execution of imprisonment with prison labor for three special robbery committed against women with lethal weapons, such as the criminal records in the judgment below. Article 3 of the current Act on Special Cases Concerning the Punishment of Specific violent Crimes is intended to punish those women more severe than general crimes. It is the reason for the existence of the criminal trial to protect society through punishment corresponding to the crime, realize justice, and protect society from the crime, and realize justice. Although there has been a special force against women who are vulnerable to the crime, it is difficult to take the victim who is already unaware of at least, and eventually, take the victim’s life cannot be subject to strict criminal liability for the Defendant’s own act and result. It is determined that it is possible to block the Defendant’s recidivism, and that the Defendant’s self-determination right to sexual self-determination and life should be respected without setting the proper period of life for the Defendant’s genuine life.

In addition, in comprehensive consideration of all sentencing factors indicated in the arguments in this case, such as the defendant's age, character and conduct, environment, family relationship, motive for the crime, means and consequence of the crime, the circumstances after the crime, etc., the defendant shall be sentenced to life imprisonment as ordered.

Judgment on the request for attachment order

1. A summary of the cause of claim;

A person subject to a request for attachment order has committed murder as indicated in the judgment, and the details of the crime have led to suppression of resistance on the ground that the victim was her bad, rape, murdered the victim, and withdrawn the amount by taking the victim's cash card in the process. The victim committed a serious crime on the ground that he/she was an individual term, and the person subject to a request for attachment order shows his/her attitude to deny some of the crimes and avoid responsibilities; the victim was sentenced to punishment for the above special robbery committed against women who are vulnerable to the crime; the degree of risk assessment of Korean sex offenders reaches the crime of this case even after having been sentenced to punishment for the crime of this case; the degree of risk assessment of the victim; the degree of risk assessment of recidivism; the degree of risk assessment of recidivism; the degree of risk assessment of mental disorder; the degree of risk assessment of recidivism; and the tendency of the person subject to the request for attachment order; in full view of the fact that the crime was committed at the middle level of risk of recidivism;

2. Relevant legal principles

Article 5(3) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders, “risk of recommitting a homicide” means that there is a lack of possibility of recommitting a crime. The risk of recommitting a homicide is objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person who requested the attachment order, the conduct, motive, means of the crime before the crime is committed, circumstances after the crime, renewal, etc., of the person who requested the attachment order, and the determination should be based on the time of the judgment, since such determination is based on the assumption of the future (see Supreme Court Decision 2012Do2289, 2012Do55, 2012Do51, May 10, 2012).

3. Specific determination

A. The following circumstances, which can be acknowledged by the evidence duly examined and adopted by the court prior to the request for attachment order and the records of the investigation report prior to the request for attachment order, can be seen as not having been planned or intended to commit the instant crime. ① The response of murder by the person subject to attachment order ordered to commit the instant crime, which was revealed through the instant crime, seems to have a possibility of mitigation or edification through an unfixed period life, etc. ② The response of the risk of sexual offenders against the Defendant is about 10 points in total; ② the evaluation of the risk of sexual offenders against the Defendant is about 10 points in total; the evaluation of the risk of sexual recidivism; the degree of adult recidivism (KSAS - G) 11 points in total; and the evaluation result of the comprehensive recidivism risk assessment of the instant crime at the level of 20 points in total; ③ it is difficult to readily conclude that the Defendant’s committing the instant crime, including murder and other dangerous weapons, was committed by the Defendant during the instant crime; ③ it is hard to conclude that the Defendant committed the instant crime and other crimes committed the instant crime.

B. Therefore, the request for the attachment order of this case is without merit, and it is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

Judges Park Nam-cheon, Counsel for the defendant

Judges fixed-type

Judges Kang Jin-han

1) No. 2, 40 pages and 511 of the investigation records