Defendant

Defendant and the respondent for attachment order and the prosecutor

Kim Jong-chul

Attorney Jeong Chang-nam

Jeonju District Court Decision 2010Gohap192, 2010 Jeonju High Court Decision (Joint) Decided February 22, 2011

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

The defendant shall be subject to probation and shall be ordered to take lectures for sexual assault treatment for 40 hours.

Disclosure of information on the accused shall be made public through an information and communications network for five years.

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

1. Summary of grounds for appeal;

(a) Defendant and the respondent for an attachment order;

(1) Fact-finding or misunderstanding of legal principles as to each indecent act by compulsion

With respect to the facts constituting the cause of the instant request for the attachment order, the Defendant and the person to whom the attachment order was requested (hereinafter “Defendant”) did not exercise any tangible power to make the victims unable to resist or suppress their will at the time of the instant case, and thus, the Defendant cannot be deemed to have committed indecent act by force.

(2) misunderstanding of facts or misunderstanding of legal principles as to the recidivism of sexual crimes or the risk of recidivism

With respect to the facts constituting the cause of the instant request for attachment order, it cannot be deemed that the Defendant has a habit of sexual crimes, and there is no risk of recidivism in light of the following: (a) the Defendant did not have the same or similar criminal records; (b) the Defendant committed each of the instant crimes by contingently; and (c) the Defendant shows his sexual organ without actively exercising force against the victims.

(3) Mistake in violation of statutes

It is against Article 28(1) of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders to impose an order to attach an electronic device without ordering the defendant to be put on probation when the court below sentenced a suspended sentence to the defendant.

(b) Prosecutors;

The punishment sentenced by the court below (two years of suspended execution in one year and six months of imprisonment, 40 hours of an order to attend a sexual assault treatment lecture, 5 years of an order to disclose, and 6 years of an order to attach an electronic device) is too uneasy and unreasonable.

2. Grounds for ex officio destruction; and

Before determining on the grounds for appeal by the Defendant and the prosecutor, the prosecutor, ex officio, maintains the facts constituting the facts charged in the judgment below and the facts constituting the grounds for requesting an attachment order as stated in paragraph (2) and the facts constituting the primary facts charged and the facts constituting the grounds for requesting an attachment order, as well as the facts constituting the grounds for requesting an attachment order. This part of the charges against the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter “the primary facts charged”) due to indecent act by force (hereinafter “the primary facts charged”), and the charges requesting an attachment order, and applying for an application for the issuance of the indictment to add the facts constituting the grounds for requesting an attachment order and the applicable provisions to the primary facts charged, and the prosecutor again made an application for modification of the indictment to add them to the primary facts charged (hereinafter “the second preliminary facts charged”) and the applicable provisions to them, which led to the change of the judgment of the court.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the grounds for appeal by the defendant and the prosecutor, and the judgment below is reversed and it is again decided as follows after pleading.

The defendant had weak ability to discern things or make decisions due to the mental disorder of the police.

1. On September 6, 2010, at around 13:45, the Defendant committed an indecent act by force against the victim, such as the victim Nonindicted Party 2 (man, 9 years of age) in front of the Seocho-gu Seoul Special Metropolitan City (name 1 omitted) 110 dong 110 dong 1-2, in order to leave the elevator and enter the elevator depending on the victim’s mind to force indecent act. When the victim left the elevator with the victim, the Defendant’s sexual organ was released to the left hand after the Defendant’s sexual organ was released, and the Defendant scambling the Defendant’s sexual organ into the front hand, and scam, and scam the victim’s scam, and the victim was aground on the part of the victim.

2. At around 15:05 on the same day, the Defendant: (a) entered an apartment with the victim Nonindicted Party 1 (the victim Nonindicted Party 1 (the age of 11), who was in front of the same seat (name 2 omitted) 109, 5-6 Ra, in order to board and return to the elevator, in order to display his or her sexual organ to the victim; and (b) searched the elevator into the apartment with the victim and other apartment residents’ residence; and (c) searched the elevator into the apartment.

1. The trial of the defendant and the original trial (as of the date of the second trial of the original trial, the date of the second trial);

1. Each police statement made against Nonindicted 2 and 1

1. Investigation report (related to the process from 112 to arrest of a suspect), investigation report (related to failure to submit ctv materials), investigation report (related to failure to submit ctv materials), investigation report (related to photographing of a suspect), investigation report (related to photographing of a suspect);

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

Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Article 298 of the Criminal Act (the point of indecent act by compulsion on persons under the age of 13, and the choice of imprisonment) / [The maximum of statutory punishment shall be 15 years of imprisonment prescribed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010) under Article 1(1) of the Criminal Act] and Article 319(1) of the Criminal Act (the point of intrusion upon residence, the choice of imprisonment

1. Mitigation of mental disorders;

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

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Minor Rape, etc. under thirteen years of age)]

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration favorable Circumstances among the Reasons for Sentencing below)

1. Order to attend lectures;

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

1. An order for disclosure;

Article 38(1)1 and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse

The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by resorting to violence or intimidation, but also the case where the act of assault itself is deemed an indecent act. In this case, inasmuch as the assault does not necessarily require that the degree of suppressing the other party’s intent is limited and the force is exercised against the other party’s will, regardless of its force, it does not necessarily mean that the assault is against the other party’s will (see Supreme Court Decision 2001Do2417, Apr. 26, 2002).

In addition, indecent act means an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus, it constitutes an infringement on the victim’s sexual freedom. Whether it constitutes such an act should be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship before the offender and the victim, circumstances leading to the act, specific manner of act, and the surrounding objective situation, sexual morality, etc. (see, e.g., Supreme Court Decision 2001Do2417, supra).

According to evidence duly adopted and examined by the court below, the victim non-indicted 2 (hereinafter referred to as "victims" in this paragraph) who was sexually 9 years old-old women living in elementary school (hereinafter referred to as the "victims") committed the above act on September 6, 2010 by using his house 110 m (number 1 omitted) and 110 m (number 1 omitted) of the above apartment house and entered the above apartment house for the purpose of going to the victim's 110 m3 and 1-2 m, and the defendant's act before the above apartment was found to have been committed against the victim's will, even if the defendant's act was found to have been committed against the victim's free will, the defendant's act was committed against the victim's sexually, and the defendant's act was found to have been committed against the victim's second seat, and the defendant's act was found to have been committed against the victim's sexually active behavior at the time of the defendant's escape.

The crime of this case is a crime of indecent act by compulsion of the victims or a crime of intrusion of residence in an apartment elevator, following the victims who come home by the defendant, by using the gap of their own sexual organ from the apartment elevator to present them to the victims, and the nature of the crime is not good. In light of the fact that the victims are likely to have suffered a lot of mental impulses due to the crime of this case, it is necessary to punish the defendants more strictly.

On the other hand, on the other hand, the defendant led to a confession and reflective attitude against each of the crimes of this case. The defendant does not have the same criminal power prior to the present case, there is no other penalty power, and the defendant committed each of the crimes of this case in the state of mental disorder due to mental retardation, and the victim's sexual organ was committed, and the degree of violence and indecent act, which is the means of indecent act, is not relatively heavy, and the defendant deposited 3 million won for victims at the court below, and the defendant made a deposit in 3 million won for victims. The court below agreed with the victim's non-indicted 2. Thus, the above circumstances favorable to the defendant are favorable to the defendant, such as the above circumstances and age of the defendant, character and behavior, environment, motive and circumstance of the crime of this case, and circumstances after the crime, etc., all of the circumstances shown in the arguments of this case shall be determined as per the order.

1. Summary of the facts charged

A. Part of the charges of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Minor Rape, etc. under thirteen years of age) due to indecent act by force against the victim Nonindicted 1

On September 6, 2010, at around 15:05, the Defendant: (a) committed an indecent act against the victim Nonindicted Party 1 (the victim, Nonindicted Party 1, 11, older than 5, older than 5-6, in front of 109, 109, and 5-6, the Defendant: (b) committed an indecent act against the victim by force against the victim, who was frighten in front of the front city (name 2 omitted); (c) had the Defendant’s sexual organ displayed; and (d) had the Defendant’s sexual organ left hand; and (d) had the Defendant committed an indecent act against the victim, who was frightened, by force.

B. Part of the first preliminary charges of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Minor Rape, etc. under thirteen years of age) due to indecent conduct by force against the victim non-indicted 1

At around 15:05 on September 6, 2010, the Defendant committed an indecent act with the victim Nonindicted Party 1 (the victim Nonindicted Party 1 (the age of 11) in front of the 109-5-6 D (name 2 omitted) in the Seocho-gu Seoul Special Metropolitan City (the name of apartment 2 omitted), following the victim’s entrance into the closed space where the elevator was closed, by using the fact that the victim could not avoid the accident, and the Defendant’s sexual organ was taken out, and then embling the Defendant’s sexual organ into the left hand, and then embling it under the above, committed an indecent act against the victim by force.

2. Determination

(a) Facts of recognition;

According to the evidence duly adopted and examined by the court below, the victim non-indicted 1 (hereafter referred to as "victim" in this paragraph) who was female 11 years old at an elementary school (the sixth grade student in this paragraph) entered the above apartment at the entrance of 109 dong (No. 2 omitted) in the front city, the front city, around September 15, 2010. The defendant was found to have been out of the entrance of the victim, and the defendant was out of the entrance of the above apartment 109 5-6 dong 109 dong, and the defendant was out of the entrance of the elevator to get out of the elevator, and the defendant was out of the entrance of the elevator to get out of the entrance of the victim, and the defendant was out of the entrance of the elevator to get out of the entrance of the victim, and the defendant was out of the entrance of the elevator to get out of the entrance of the victim, and the defendant was out of the entrance of the elevator to get out of the entrance of the victim.

B. Whether to recognize an indecent act by force or indecent act by force

The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by resorting to violence or intimidation, but also the case where the act of assault itself is deemed an indecent act. In this case, as long as the assault does not necessarily require the degree of suppressing the other party’s intent and the exercise of force against the other party’s will, regardless of its force, it does not necessarily mean that the assault is against the other party’s will (see the above Decision 2001Do2417).

In addition, the force under Article 7 (5) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes refers to the force sufficient to suppress the victim's free will. Since it is not tangible or intangible, it is possible to use the social, economic, political status or authority as well as assault and intimidation, and it is also possible to use the social, political status or authority. In this case, the force in question includes the cases where the act of force itself is deemed an indecent act. It does not require the actual suppression of the victim's free will. In addition, the indecent act means that it objectively causes sexual humiliation or aversion to the general public and goes against the good sexual moral sense (see Supreme Court Decision 97Do2506, Jan. 23, 1998, etc.).

As shown in the above facts, considering the relationship between the defendant and the victim, the circumstance and the situation at the time of the defendant's above act, the act of the defendant, who is an string male, shows the appearance of his sexual organ in the elevator, which is a closed space where the victim can be cut off with the victim, and the act of making the victim play more much more than the victim's sexual organ in the elevator, which is a closed space where the victim can be cut off with the victim, can be seen as an indecent act by compulsion or force.

However, on the other hand, the following circumstances acknowledged by the record, i.e., the defendant shows the appearance of leaving the victim's sexual organ in his hand within an elevator where he is female 11 years old or older, as above, but the defendant did not directly contact the victim's body or attempt to do so. The defendant's elevator going up to the victim's (number 3 omitted) with his sexual organ during a period between several seconds and several seconds (it does not seem that the defendant's act was done at the time, considering the content of the victim's statement, and it does not seem that the defendant did not go ahead of his own sexual organ or forced to view it as his sexual organ, and the victim's act could escape from the defendant's act by immediately stopping the elevator at the time or stopping it, but it is difficult to conclude that the defendant's act did not directly interfere with the victim's sexual organ or by any other means, but it does not constitute an indecent act by force or by any other means to prevent the defendant from spreading the victim's external force.

또한 검사가 유죄의 근거로 제시하는 대법원 2010. 2. 25. 선고 2009도13716 판결 은 피고인이 엘리베이터 안에서 피해자를 칼로 위협하는 등의 방법으로 꼼짝하지 못하도록 하여 자신의 실력적인 지배하에 둔 다음 자위행위 모습을 보여준 사안에 대한 것이어서 사안이 다른 이 사건에서 그대로 원용할 수 없다.

C. Sub-decision

Therefore, the primary and primary charges should be pronounced not guilty in accordance with the latter part of Article 325 of the Criminal Procedure Act because there is no proof of a crime. However, as long as the court found the defendant guilty of a crime of intrusion upon residence, which is the second preliminary charges, the court does not render a separate verdict of innocence.

1. The abstract of grounds for requesting an attachment order;

(a) Facts constituting a petition filed for an attachment order;

The Defendant, as stated in paragraph (1) of the facts constituting a crime and paragraph (1) of the judgment of not guilty, committed a sexual crime against a person under the age of 16 on two or more occasions, thereby committing a sexual crime, and is likely to recommit a sexual crime.

(b) Facts of the request for a preliminary attachment order;

As stated in the facts of the crime in the judgment, the Defendant committed indecent act by force against the victim Nonindicted 1 by force as described in Article 1-b. of the part not guilty, thereby committing a sexual crime against the minor under the age of 16 on at least two occasions, and is likely to recommit a sexual crime.

2. Determination

A. As to the indecent act by indecent act by force or force

As seen in the part on the conviction of the part on the charge of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against the Victim Nonindicted 2 (a minor rape, etc. under the age of 13), the part on indecent act against the victim Nonindicted 2 is acknowledged, but it is difficult to readily conclude that the Defendant’s act constitutes an indecent act by force or by force against the victim Nonindicted 1 as stated in the judgment, and there is no other evidence to acknowledge it. Therefore, the Defendant cannot be deemed to constitute “where a sexual crime is committed on at least two occasions” under Article 5(1)3 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders.

B. As to the risk of recidivism

The risk of recidivism of a sexual crime as prescribed by Article 5(1) of the Act on the Attachment, etc. of Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely with the possibility of recidivism, and that there is a probable probability that the 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 objectively determined 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 prior to the crime, the motive, means, the circumstances after the crime, and the situation after the crime, etc., and such determination shall be based on the time of the judgment (see Supreme Court Decision 2010Do7410, Dec. 9, 2010).

The defendant's act is difficult to conclude that the defendant committed the above act in the state of mental disorder by compulsion or force against the victim non-indicted 1, who is a woman of 9 years old age who is on board the apartment house. The defendant committed the crime of indecent act by compulsion against the victim's shoulder. After moving the place, the defendant's act of displaying his sexual organ to the victim non-indicted 1, who is a woman of 11 years old age in another apartment house. However, the defendant's indecent act committed by the victim non-indicted 2 is not relatively more severe than that of the defendant's indecent act or indecent act by force. The defendant's act is hard to conclude that the defendant committed the above act in the state of mental disorder due to the mental disorder of 00 years old, and the defendant committed the above act at intervals of 1 hour and 20% of the above victim's second time, and there is no other evidence that there is a minor risk of recidivism by the defendant's mental disorder or mental disorder of the defendant's intermediate evaluation of the defendant's mental disorder.

C. Sub-decision

Therefore, the claim for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that the claim for the attachment order of this case is without merit.

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

Judges or higher-ranking (Presiding Judge)