2017Gohap1101 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Rape)

2017. Consolidated order to attach 2017.

Claimant

A

Kim beneficiary (prosecution), official leather, and Kim Jong-chul (trial);

Attorney B (Korean National Assembly)

April 6, 2018

A defendant shall be punished by imprisonment for three years.

The defendant shall be ordered to complete the sexual assault treatment program for 120 hours. The defendant's information shall be disclosed and notified through the information and communications network for three years. The request for the attachment order of this case shall be dismissed.

Criminal History Office

The Defendant committed the following crimes with a lack of ability to discern things or make decisions due to mental retardation, bipolar disorder, etc. as a person with a second grade judgment on intellectual disability:

From November 2016 to around October 15, 2017, the Defendant resided in Daejeon's "C" and went to Seoul and found the object of crime to rape young women, and returned to Seoul. The Defendant discovered that, around 04:00 on October 16, 2017, the victim E (one, two-three years of age) was only about returning home, and the Defendant tried to 00 apartment management office managed by the victim after entering the elevator with the victim, who was a resident of the apartment of ○○ apartment, and then was 8th floor to board the elevator, and tried to remove the victim's face from the victim's body and the victim's body, and then divide the victim's face into the victim's body and the victim's body into the victim's body and the victim's body, and then, the victim's face cannot be sealed into the victim's body.

However, the Defendant heard the horses from the victim that "I can see that I will come up with the victim's house, but I will see it," and tried to rape the victim at the victim's house, along with the victim's house, and the victim did not go to the victim's house before the entrance, and did not go to the victim's parents' right before the entrance, and did not go to the attempted crime.

Summary of Evidence

1. Defendant's legal statement;

1. Statement to E by the police;

1. Photographs of the victim;

1. The map at the scene of crime;

1. A gene appraisal report;

1. Application of the Acts and subordinate statutes concerning the investigation report (CCTV image);

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

Articles 15 and 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 297 of the Criminal Act

1. Mitigation of mental disorders;

Articles 10(2) and (1), and 55(1)3 of the Criminal Act (the Defendant was diagnosed with class 2 of intellectual disorder, stimulative disorder, and manic disorder with existing symptoms of mental disorder, and was in a mental hospital for about 16 years from around 2001 to October 2016. Even after discharge, the Defendant was in a mental hospital for about 16 years. The Defendant was unable to lead a long time to lead a normal social life by repeating the entry into and discharge from a mental hospital from the hospital before the instant crime was committed. Ultimately, the Defendant committed the attempted rape in the elevator where CCTV was installed and accessible by anyone in the state of mental retardation and stimulative disorder, and the Defendant committed the crime in which CCTV was installed. Considering the Defendant’s medical history, living environment, and circumstances of the instant crime, it is reasonable to view that the Defendant had the ability to discern the objects at the time of the instant crime, or to make decisions on the intent thereof.)

1. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. An order for disclosure and notification;

1. Reasons for sentencing under Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Articles 49(1)2 and 50(1)2 of the Act on the Protection of Children and Juveniles against Sexual Abuse;

2. Non-application of the sentencing criteria: An attempted offender, thus the sentencing criteria shall not apply.

3. The instant crime committed by the sentence decision was committed by the Defendant who intrudes on the apartment according to the victim’s home home, and tried to rape after the victim was on board, but the crime is very bad in light of the content and method of the crime. The victim is likely to have suffered considerable sexual humiliation and mental or physical pain, and the victim’s wife and pain are completely cured. There seems to be a considerable time in the future until criminal punishment was completely cured. Even before the Defendant had been imposed on the crime similar to the instant case, the Defendant again committed the instant crime, even though there was a history of criminal punishment, and did not receive a written use from the victim. These circumstances are disadvantageous to the Defendant.

However, the mental retardation, etc. of the defendant had influenced the crime of this case by committing the crime of this case, and the crime of this case was committed in parallel. In addition, the defendant committed the crime of this case from the investigative agency to the criminal investigation agency, and the criminal record of the defendant was committed for about twenty years, and there was no record of punishment thereafter. Such circumstance is considered as favorable to the defendant.

In addition, the defendant's age, character and conduct, family relations, motive, means and result of the crime, and various sentencing conditions specified in the trial process of this case, such as circumstances after the crime, shall be determined as ordered.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Judgment on the request for attachment order

1. Summary of request;

A person who has committed a sexual crime, as stated in its holding, is highly likely to recommit a sexual crime, taking into account the following factors: (a) the person against whom the attachment order was requested; (b) the person who has committed the same offense; (c) the person who has been punished for the same kind of crime; and (d) the method of committing the crime; (d) the background and character of the person who has been requested to attach an electronic device

2. Determination

The term “risk of recidivism of a sexual crime” under Article 5(1) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders (hereinafter “Electronic Monitoring Act”) means the possibility of recidivism is insufficient solely with the possibility of recidivism, and there is a probable probability that the person subject to an application to attach an electronic device may injure the legal peace by again committing a sexual crime in the future. The existence of the risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the application to attach an electronic device, the behavior before and after the crime, the motive, means, the circumstances after the crime, and the situation after the crime. Such determination is a assumptive determination for the future, and thus ought to be based on the time of the judgment (see, e.g., Supreme Court Decision 2010Do7410, 2010Do444, Dec. 9, 201). In light of the aforementioned legal doctrine, it is difficult to readily conclude that the person subject to attachment order again submitted by a prosecutor is evidence:

A. As a result of the evaluation of the degree of risk of a sex offender in Korea (KSORAS) against a person who requested an attachment order, the risk of recidivism was at the 11th point, and the risk of recidivism was at the 22th point in total as a result of the evaluation of the screen of a mentally ill person (PC-R). The evaluation conducted on the mental diagnosis of the person who requested the attachment order was at the 22th point in total. The evaluation conducted on the mental diagnosis of the person who requested the attachment order is likely to engage in the last similar crime, but it was presumed that the possibility would not be high.

B. On May 7, 1997, the person against whom the attachment order was requested shall be deemed to have been sentenced to imprisonment with prison labor for a maximum of two years and one year and six months at the Incheon District Court for rape, etc., but there is no record of criminal punishment for about twenty (20) years thereafter to the instant case. In this case, if the judgment becomes final and conclusive, the person against whom the attachment order was requested shall obtain the completion of sexual assault treatment programs, the registration of personal information, the disclosure of personal information, and the notification of personal information, along with a reasonable period of life, and thereby, it is likely that the person against whom the attachment order was requested be distorted to a certain degree of

D. It is true that there is room for undermining the risk of recidivism in light of the evaluation criteria for the degree of risk of sexual offenders in Korea, since the person subject to the request for the attachment order was unable to lead a normal social life with a long-term mental hospital. However, even after the discharge from a mental hospital, the person subject to the request for the attachment order voluntarily enters the source, tried to lead a community life, adapt to the society, and did not cause sexual problems during that period. Thus, the above circumstance alone does not necessarily mean that the person subject to the request for the attachment order has the habit of sexual crimes.

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.

It is so decided as per Disposition for the above reasons.

The presiding judge and the deputy judge;

Regular Category of Judges

For judges the last place: