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(영문) 부산고등법원 2018.09.12 2018노188
성폭력범죄의처벌등에관한특례법위반(특수강간)등
Text

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for not less than two years and six months.

except that from the date this judgment becomes final and conclusive.

Reasons

1. The summary of the grounds for appeal is too unreasonable that the lower court’s punishment [three years of imprisonment, forty hours of imprisonment, three years of imprisonment, three years of short term, two years and six months of short term, and forty hours of order to complete a program] is too unreasonable.

2. We examine ex officio the Defendants’ assertion of reasons for appeal prior to the determination of ex officio.

Article 56(1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15352, Jan. 16, 2018; Article 56(1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse, which uniformly provides for the restriction on employment of children and juveniles-related institutions, etc. for a period of ten years for each defendant of the case, taking into account the seriousness of the crime and the risk of recidivism, etc., upon sentencing the punishment for each sex offense, the court has set a differential period of restriction on employment within the scope of ten years for each defendant of the case. Article 3 of the Addenda of the above Act provides that Article 56 of the Act provides that the amended provisions of Article 56 shall apply to persons who committed a sex offense before July 17, 2018, which is the date the above Act enters into force, and thus, the above amended Act shall also apply to this case.

3. As to the case of the claim for attachment order

A. The risk of recidivism of a sexual crime as prescribed by Article 5(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders refers to a probable probability that a person subject to the request to attach an attachment order may injure the legal peace by committing a sexual crime again in the future. The existence of the risk of recidivism of a sexual crime shall be determined objectively by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the request to attach an attachment order, the criminal conduct before the crime in question, the motive and means of the crime in question, the circumstances after the crime, and the situation after the crime, etc. (see Supreme Court Decision 2014Do17294, Feb. 26, 2015; 2014Do276, Feb. 26, 2015).

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