Defendant and the respondent for attachment order

Prosecutor

Audio-type (prosecution), Kim Jong-Un, and Oral court (public trial)

Law Firm Won, Attorney Shin Sung-ap et al.

Jeju District Court Decision 2014Gohap202, 2014 Jeon high-ranking11 (Consolidated) Decided October 22, 2015

All of the appeals by prosecutors are dismissed.

1. Summary of the prosecutor's grounds for appeal;

A. Legal principles

The lower court acquitted the victim of the primary charge on the ground that the victim cannot be deemed to have a mental disorder sufficient to exercise his/her right to sexual self-determination. However, in light of the amendment history and text of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the requirement that the victim has to have a mental disorder sufficient to exercise his/her right to sexual self-determination is required only under Article 6(4) of the same Act, and the requirement is not required under Article 6(1), (3), and (5) of the same Act, which is the primary charge of the instant case, to establish the crime of rape of the disabled, indecent act by force against the disabled, and deceptive act against the disabled. In this case, the victim constitutes a disabled person with a physical and visual disability due to the paralysis, and since the victim and the respondent of the attachment order (hereinafter “defendant”) used such physical disability of the victim for the crime, all of the primary charges should be found guilty. Therefore, the lower court erred by misapprehending the legal doctrine on the premise different from this, thereby affecting the conclusion of the judgment.

B. Unreasonable sentencing

The instant case is a case where the Defendant committed several times against the victim who is a disabled person living alone, and is highly likely to be criticized. In light of the fact that the Defendant denied the crime in the investigative agency and the court of the court below, and recognized the facts charged after agreement with the victim, it is difficult to view the agreed amount paid to the victim as sufficient amount for recovery from damage, and that the Defendant spreads a good answer against the victim, thereby causing secondary damage to the victim, the sentencing of the court below (five years of suspended sentence of imprisonment for a term of three years) is unfair.

(c) Unfair exemption from disclosure or notification orders;

It is unfair that the court below exempted the defendant from issuing an order to disclose and notify personal information.

(d) Unfair rejection of a request for attachment order;

It is improper for the court below to dismiss the request for attachment order against the defendant who is likely to repeat the crime.

2. Determination

A. As to the assertion of misapprehension of legal principle

Article 6 of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11088, Nov. 17, 2011) provides that “A person who has sexual intercourse with, or commits an indecent act against, a female by taking advantage of his/her physical or mental disability that is unable to resist shall be punished pursuant to Article 297 (Rape) or 298 (Indecent Act) of the Criminal Act.” In this regard, the Supreme Court held that “The above provision is a legal interest in the right to sexual self-determination of a disabled person, so it shall be proved that the victim has a mental disorder to the extent that he/she is unable to exercise his/her right to sexual self-determination, other than a mere intellectual disability, even if the victim is a disabled person with intellectual disability (see, e.g., Supreme Court Decision 2012Do127

Since then, the above provision was amended by Act No. 11088 on November 17, 2011. Accordingly, Article 6(1) of the Act provides that "a person who commits a crime under Article 297 (Rape) of the Criminal Act against a female shall be punished by imprisonment for life or for at least seven years," while Article 6(2) of the Act provides that "a person who commits an act falling under any of the following subparagraphs by violence or intimidation against a person with a physical or mental disability shall be punished by imprisonment for a limited term of at least five years."

Meanwhile, examining the legislative proposal on Article 11088 of the above Act, “The current Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is punishable for a crime under the Criminal Act because there is no separate provision in the case of rape or indecent act by compulsion against a person with a physical or mental disability,” but there is a problem such as facilitating a crime of a perpetrator and extinguishing a crime because the person with a disability is relatively lower than the person with no disability, due to the recognition ability, ability to resist or cope with it, the possibility that the crime may be committed may be detected, so that the crime is subdivided by type of sexual crime against the person with a disability and the punishment is also to be aggravated than the general sexual crime.”

Considering the legal text and text of Article 6 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the term and text of the Act, the force and purport of the amendment, and the legal interest protected by the above provision, such as the right to sexual self-determination of persons with disabilities, it is reasonable to view that the instant act constitutes the crime of rape of persons with disabilities, the crime of indecent act by force of persons with disabilities, and the crime of deception of persons with disabilities, etc. under Article 6(1), (3) and (5) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, even though the victim is not required to have a state of non-performance of right to sexual self-determination to the extent that he/she cannot exercise his/her right to sexual self-determination due to physical or mental disability, objectively considering the victim’s awareness ability, ability to resist, or response ability is relatively lower than that of persons with disabilities, and the Defendant also should have known

In the instant case, on the premise that the victim needs to have a mental disability to the extent that he/she cannot exercise his/her right to sexual self-determination, the lower court deemed it difficult to readily conclude that the victim had such disability on the grounds stated in its reasoning, and acquitted the victim of the primary charge. In such a judgment of the lower court, the part of the lower court’s explanation to the purport that the victim should have a mental disability to the extent that he/she cannot exercise his/her right to sexual self-determination, is inappropriate in light of the aforementioned legal doctrine. However, in light of the circumstances in the lower court’s reasoning acknowledged by the evidence, particularly of the following: (a) the victim’s external appearance, physical characteristics and ability, intelligence, life habits of the victim; and (b) the details and specific statement attitude stated in the investigation agency or the lower court’s court’s court’s appearance and appearance, it is still difficult to recognize that the victim has a physical or mental disability to the extent that it is necessary to protect the victim; and (c)

Therefore, the judgment of the court below is not erroneous in the misunderstanding of legal principles, which affected the conclusion of the judgment, as otherwise alleged by the prosecutor.

B. As to the assertion of unfair sentencing

It is desirable to respect the sentencing of the first instance court in cases where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion. Although the sentence of the first instance falls within the reasonable scope of discretion, it is desirable to refrain from rendering a sentence that does not differ from the first instance court solely on the ground that the opinion of the appellate court is somewhat different from that of the appellate court (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

In this case, the court below seems to have sentenced the same punishment as the order considering the circumstances favorable to the defendant and the recommended sentencing guidelines of the Sentencing Commission. In full view of all the reasons for sentencing as stated by the court below, it is difficult to view that the sentencing of the court below is too unfied and exceeded the reasonable scope of discretion, and there is no change in the conditions of sentencing compared to the court below since new sentencing materials have not been submitted in the trial.

Therefore, the prosecutor's assertion on this part is without merit, since the court below's punishment is too uneasible and unreasonable.

C. As to the wrongful argument regarding exemption from disclosure and notification orders

In light of the Defendant’s age, occupation, family environment, character and conduct, motive and circumstance of the instant crime, means and consequence, etc., the Defendant did not have any history of having been punished as a sexual crime before the instant crime, and the probation and personal information registration of the Defendant, and sexual assault treatment programs are deemed to have considerable effect on preventing recidivism. In addition, in full view of the Defendant’s age, occupation, family environment, personality and conduct, the motive and consequence of the instant crime, etc., it is deemed that there is a special circumstance that the Defendant’s personal information may not be disclosed or notified to the public.

Therefore, the court below's decision that exempted the defendant from the disclosure and notification order of personal information against the same purport is justifiable, and thus the prosecutor's assertion on this part cannot be accepted.

D. As to the prosecutor’s rejection of the prosecutor’s request for attachment order

In full view of the circumstances as indicated in the reasoning stated in the record, the lower court deemed that it is difficult to readily conclude that the Defendant committed a sex offense again in the future and thus dismissed the prosecutor’s request for an attachment order. Examining the reasoning of the lower judgment in comparison with relevant legal principles and records, the lower court’s dismissal of the request for the attachment order

Therefore, the prosecutor's assertion on this part is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act and Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders. It is so decided as per Disposition.

Judges Ma-ju (Presiding Judge)

Note 1) This part was amended by Act No. 11556, Dec. 18, 2012, and its object was expanded from “a woman” to “a person”, and remains at present.