2014No111 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years of age);

only minor indecent acts, punishment of sexual crimes, etc.

Act on Special Cases Concerning Residence, Rape, etc.

2014Electric No. 12 (Joint Attachment Orders)

KimA (48***********), operation of convenience stores

Both parties

In case of interference (prosecutions), users (public trial)

Attorney Im Chang-soo

Daejeon District Court Decision 2013Gohap150, 2013 Decided February 12, 2014

High 16 (Joint Judgment) Judgment

October 6, 2014

The part of the judgment of the court below regarding the defendant case shall be reversed.

A defendant shall be punished by imprisonment for four years.

Information on the accused shall be disclosed through an information and communications network for five years.

The defendant shall be ordered to complete a sexual assault treatment program for 40 hours.

The prosecutor's appeal regarding the part of the attachment order case among the judgment below is dismissed.

1. Summary of grounds for appeal;

(a) The defendant and the person to whom the attachment order is requested (hereinafter referred to as the "defendant");

(1) misunderstanding of facts or misapprehension of legal principles

The judgment of the court below that found the Defendant guilty of the facts charged in this case on the grounds of the victim’s statement, etc., although the Defendant did not have committed indecent act twice as indicated in the facts charged of this case, was erroneous in the misapprehension of legal principles or erroneous in

(2) Unreasonable sentencing

The sentencing of the lower court (four years of imprisonment) is too unreasonable.

(b) A prosecutor;

The sentencing of the court below is unfair because it is too unfasible, and it is also unfair for the court below to dismiss the prosecutor's request for attachment order.

2. Determination on the part of the defendant's case

A. As to the defendant's assertion of mistake of facts or misapprehension of legal principles

(1) Summary of the facts charged

1. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts by minors under thirteen years of age) and violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

피고인은 2010년 일자불상경 천안시 서북구에 있는 피고인 운영의 CU 편의 점에서 물건을 사러 들어온 피해자 백○○( 여 , 10세) 이 소변을 보고 싶어 화장실을 알 려달라고 하자 위 편의점 내 뒤편에 있는 화장실의 위치를 알려주었다. 피고인은 피해 자가 위 화장실 내로 들어간 다음 화장실 문을 닫자 욕정을 느끼고 잠시 후 위 화장실 의 문을 열고 안으로 따라 들어가 바지와 속옷을 내린 채 변기에서 일어나려고 하던 피해자의 상체를 양팔로 눌러 반항을 억압한 후 혓바닥으로 피해자의 음부를 수회 핥 았다.

Accordingly, the defendant invaded into the room and forced the minor victim under 13 years of age to commit an indecent act.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Acts by minors under thirteen years of age);

이후 피고인은 2010년 일자불상경 위 편의점 인근 노상에서 우연히 그곳을 지나가던 피해자를 발견하자 욕정을 느끼고 피해자를 피고인의 그랜저 승용차 뒷좌석 에 태운 다음 천안시 성환읍 성월리에 있는 남서울대학교 부근으로 이동하여 차를 세 웠다. 피고인은 운전석에서 피해자가 앉아 있는 뒷자리로 넘어가 바지를 벗은 후 강제 로 피해자의 바지와 팬티를 벗기고 입으로 피해자의 음부를 수회 핥았다.

Accordingly, the defendant committed an indecent act against the minor victim under 13 years of age.

(2) The judgment of the court below

In full view of the following circumstances, the lower court convicted all of the facts charged of the instant case.

(A) The credibility of the victim’s statement

1) Details of the victim’s statement

피해자는 경찰 및 이 법정에서, 『당시 편의점으로 들어가다가 화장실이 더 무 급해서 피고인에게 물어보아 피고인이 가리키는 화장실에 들어갔었는데, 얼마 있다. 가 피고인이 화장실에 들어와 소변을 보고 일어서려는 자신을 밀치고 혓바닥으로 여기 ( 음부) 를 쓸었고, 이에 피고인을 밀치고 뛰어서 도망갔다 』 , 『피고인이 자신의 손목을 잡고 승용차의 조수석 뒷좌석에 태운 뒤 남서울대학교 근처로 가서 차를 주차한 후 운 전석 뒷좌석으로 넘어와 자신의 바지와 팬티를 무릎까지 벗기고 피고인 자신도 바지를 벗은 후 혓바닥으로 여기( 음부) 를 쓸면서 입술로 훅훅 불기도 하였다 』 고 진술하였는 데 , 화장실에서의 강제추행 내용에 대하여 비교적 명확히 기억하고 있고, 차량에서의 강제추행 당시 피고인과 피해자의 위치, 피고인의 행동 및 강제추행 내용을 상당히 구 체적이며 일관되게 진술하는 등 세부내용의 묘사가 풍부하고, 정형화된 사건 이상의 정보가 담겨 있다. 무엇보다. 피해자가 범행 당시에는 초등학교 6학년, 상담 교사에게 최초로 강제추행 내용을 털어놓을 당시에는 중학교 1학년이었던 점을 고려하면 이러한 피해자의 진술은 피해자가 직접 경험하거나 목격하지 않고서는 쉽사리 상상하거나 묘 사하기 어려운 내용으로 보인다.

2) Circumstances leading to the investigation of the instant case

The victim had been aware of the indecent act at the convenience store of this case at around July 201, which was a health teacher of the school at the time of the first grade of the middle school, and began to be aware of other sexual violence crimes that had been committed in Pyeongtaek-si while talking with KimCC, a specialized counselor at the school around April 6, 2012. Accordingly, KimCC reported this fact to the Chungcheongnam-nam Stop Support Center on April 27, 2012, and the victim side filed a complaint against sexual assault victim's sexual assault victim's sexual assault victim's sexual assault victim's sexual assault victim's sexual assault victim's case including this case around May 1, 2012, and police investigation was initiated. In light of the fact that the victim's sexual assault victim's sexual assault victim's investigation of this case, including this case, was naturally discovered and there is no other reason to believe that the investigation of this case occurred.

3) The accuracy of the statements made by the victim concerning the situation at the time of crime

Although there is a tendency to have the victim wanted to receive another person's interest in the victim's vehicle, it was impossible to adapt the victim's statement to school life, such as unauthorized seat without permission, and as seen below, some statements are different from the facts and inconsistent. However, in addition to the core crime, the victim is relatively clearly memoryd about the storage type of the defendant's convenience store, the location of cremation room, the place where the defendant's car was parked at the time of the crime, and the fact that the victim used the toilet within the convenience store operated by the defendant, as described in paragraph 1 of the decision, and the fact that the victim was born near the Southernnam University, as described in paragraph 2 of the decision, is recognized, and the victim's statement about the situation at the time and time was confirmed to be the fact that the victim's statement about the situation was similar to the victim's another sexual assault crime committed by the victim at the time of counseling, it is difficult to view the victim's statement to have been sexual assaulted by the victim at the end of 17th year prior to the consultation.

4) The degree of importance of the victim’s non-conformity statements

As pointed out by the defense counsel, the victim stated that the victim committed an indecent act by opening a toilet and opening a door on the part other than the core crime, i.e., the shape and the toilet finger at the time of the indecent act by compulsion in the toilet (the police had the hole in the toilet kine part on the premise of two sides, and there was no locking device. However, this court stated that this may be locked and locking the toilet door. The actual act after the defendant went into the toilet door on the urine (in light of the warning, the toilet door was opened and opened without the reading center, and it was difficult for the defendant to open the toilet door at the time of the escape, and it was difficult for the police to open the toilet door at the time of this court to see that the defendant was locked and indecent act by compulsion), and that there was a change in the location of the driver's seat in the front part of the vehicle (the front seat of the police station and then the driver's seat in the front part of the vehicle).

However, it is unreasonable to expect that the statements made by the victim of a sexual crime against a child under 13 years of age are consistent in all respects due to the nature of the sexual crime, and ② if the victim took care of and talks about an offense that he/she does not have to face, problems are found in the statements made in the core indecent act. The victim has been consistently stated in the core indecent act; ③ consultation at school after the victim was committed a crime in 2010; ③ consultation at school; and consultation at the police and the statement at this court several times after the victim made several statements in 2010; ④ minor answers may be limited in accordance with the victim’s question contents or guidance points; ⑤ In light of the fact that the victim’s passive attitude is somewhat divided into the victim’s passive attitude and the victim’s speech lack, it is difficult to conceal the credibility of the victim’s statements made in the core indecent act alone.

(B) The credibility of the Defendant’s statement

On the other hand, the defendant's statement denying the crime of this case, which is acknowledged by the evidence, is the following circumstances. Above all, the defendant made a statement to the effect that he would confession the crime of this case from the first police investigation, and the defendant tried to contact the victim's father after the police investigation was conducted on May 2012, 00, and 0D attempted to contact the victim's father and her agreement. At the time of the prosecutor's investigation, the defendant's statement that "I want to talk about the victim's mental compensation" and "I would like to speak about the victim's mental compensation," and that I would like not to speak that I would like to say that I would like to defend the victim's rejection of the defendant's statement that I would like to say that I would like to say that I would like to know about the victim's mental behavior," and that I would like to make it difficult for the defendant's statement that I would like to give more convenience to the victim's statement.

(C) The surrounding circumstances, such as the place of crime

1. ① The first place of crime is a toilet within an elementary school’s convenience store, and the above convenience store is relatively open to many people, and the dwelling of the defendant is located on the second floor connected with the stairs adjacent to the toilet that are used by the elementary school students at the time of the crime. However, the above toilet is located in the entrance of the warehouse after the convenience store, and the second floor is located in the entrance of the bar, and it does not seem that the noise in the toilet was unfolded at the second floor at the time of the crime. As such, it is difficult to view that the defendant’s attorney’s act of indecent act by compulsion at the above place, as argued by the defendant’s defense counsel, to the extent that it is difficult to reduce the amount of noise in the toilet.

② The second place of crime asserts that the Defendant went back to the South National University near Seoul National University, and that the Defendant went back to this place. However, it is not clear that at the time the Defendant did not have any relationship with the Defendant, the Defendant was satisfying a student of an elementary school in his/her own car, and it is difficult to believe that he/she went back to the said place rather than the Defendant’s and the victim’s house.

(3) Judgment of the court below

(A) Relevant legal principles

In determining the credibility of a statement submitted as evidence for a sex crime victim's statement, it is necessary to examine whether the statement was made by the guardian, etc. who discovered the first time when the statement was made, or whether the child was voluntarily damaged by voluntarily considering the fact that the statement was made, and to consider the fact that there is a strong possibility that the statement was made by the questioner, confusion between the circumstances and reality, or that the source of memory could not be properly perceived after the occurrence of the case, and that the guardian or investigator who heard the first fact of the child's damage during the process from the occurrence of the case until the statement was made through the occurrence of the case, may not cause a change in the child memory by providing the child with non- fact-finding information or inducing a specific answer through repeated interrogation, etc., whether there is room to bring about a change in the child memory; whether the statement made by the questioner was repeated at the time of the statement; what statement was made in the court; and also, whether the statement made in the investigation agency contains consistency with the contents of the statement; and whether the statement made in this case contains more than 20.

(B) Determination

Upon examining the reasoning of the judgment below in light of the above legal principles and records, the part of the court below's decision which presented a statement to the effect that the defendant led to the confession of the crime of this case at the time of interrogation of the police, based on the grounds for impeachment of the defendant's statement, is inappropriate since it was based on the police interrogation protocol without admissibility of evidence. However, if the remaining circumstances of the court below are different from those of the court below, the court below's decision is acceptable, and it is hard to see that there was an error of law in the misunderstanding of facts or a law

1) As to the assertion on the general credibility of the victim's statement

(1) The defense counsel asserts to the effect that “the content of the statement by the victim is satisfyd after the lapse of time and is altered more physically, and therefore, credibility is nonexistent.”

However, examining the contents of the victim's statement to the ReBB of a health teacher on July 7, 201, the contents of the statement made by the Dasaw Support Center (Investigation Agency) on May 10, 201, and the contents of the statement made by the court of the court below on October 16, 2013, the contents of the statement made by the victim to the ReB are simplifiedly stated in the counseling and life guidance records (number of copies 127 pages) by the ReB. Thus, the contents of the statement made by the victim to the ReB are bound to be stated. The content of the statement made by the victim in the investigation agency and the court of the court below are specified as the content of each question, and the content of the statement made by the victim cannot be deemed to have been intentionally added or changed.

② 변호인은, '피해자의 진술내용은 공소사실 제1항의 범행장소가 ”마트 내 사무실에서 "마트 내 화장실 "로, 공소사실 제2항의 범행장소가 ”남서울대학교 공연장 "에서 "문화회관"으로 변경되고, 공소사실 제1항 관련 변기의 모습 및 피해자의 상태가 " 피고인이 들어와서 밀쳐서 (양변기에) 앉아 있었는데 성기를 혓바닥으로 쓸었다"에서 " 옛날식 좌변기에서 볼 일을 보고 일어나 있는데 피고인이 들어와 쪼그리고 앉아 아랫 부분을 핥고 밀어서 주저 앉혔다"로 변경되는 등 핵심적인 범죄내용에 관한 진술내용 도 변경되고 있어 신빙성이 없다.'는 취지로 주장한다.

However, the part of the statement concerning the place of crime under paragraph (1) of the facts charged is deemed to coincide with the victim's response to the inquiry by the Health HyB on July 7, 2011 and it is difficult to view that the victim's intent was delivered accurately. In addition, the part of the victim's response to the "cultural center" in the court of the court below as stated in paragraph (2) of the facts charged at the court of the court below is not "within the school of Seoul, the Seoul, or "Yancheon, the Women's Culture Center" but "Seoul" (the page 67). Since the above "cultural center" is deemed to coincide with the place indicated by the investigative agency at the Seoul National University Library at the time of investigation (the page 47 of the investigation record). Thus, it is difficult to view that the victim's statement about the place of crime under paragraph (2) of the facts charged was changed.

또한 피해자의 수사기관 진술 중에는 ‘변기에 앉아 있었는데 피고인이 혓바닥으로 핥았다' 는 진술( 수사기록 17면) 과 함께 일어서다가 갑자기', '피고인이 바지를 올리는1) 순간에 왔다'는 진술(수사기록 18면) 이 있는 점, 피해자는 진술태도가 다소 소극적이고 언어적 표현능력이 부족한 것으로 보이는 점 등을 고려하여 보면, 피해자의 수사기관 진술이 반드시 피해자가 앉아 있는 상태에서 강제추행을 당하였다는 취지의 진술로만 보기는 어렵고, 따라서 피해자가 원심 법정에서 '볼일을 보고 일어난 상태에서 피고인 이 쭈그리고 앉아 핥았다'는 취지로 진술( 공판기록 62면) 한 것이 수사기관에서의진술 을 변경한 것이라고 보기는 어렵다.

③ The defense counsel asserts to the effect that “The victim changed his/her statement about the time on which he/she received the phone number from the Defendant; the victim took convenience stores of the Defendant two to three times after the case described in paragraph (1) of the facts charged; the victim took telephone conversations between the Defendant and the Defendant two to three times; and the vehicle of the Defendant was two times; the victim took convenience stores of the Defendant or took part in his/her surrounding area during the period between May and June 2014, it is difficult to deem that the victim was suffering from damage identical to the facts charged in the instant case.”

However, the victim appears to have been unable to accurately memory at the time when he was asked from the defendant at the time when he was asked to make a statement at the investigative agency (at the bottom of 20 upper parts and 21 pages of the investigation record, 42 pages of the investigation record). Thus, it is difficult to view that the victim changed his statement at the court of original instance at the time of the case. In addition, at the time of the instant case, the victim was in a state of falling short of the intellectual or verbal expression ability in the age of 10 to 11, and around May and June 2014, the victim was detained by the defendant, and the bus terminal was located near the convenience store of the defendant, and the victim could go to the surrounding area, it is difficult to view that the circumstance cited by the defense counsel constitutes a situation that could deny the credibility of the victim’s statement.

2) As to the assertion on the field situation, etc.

① 변호인은, 공소사실 제1항과 관련하여 “ 이 사건 범행시각인 오전 8시 10분경은 편의점에 손님들이 많은 시간이고 , 약 10분 후에 교대 아르바이트 근무자가 출근하는 시간이어서 피고인이 편의점 카운터를 비우고 화장실에 들어갈 시간적 여유 가 없는 점, ⑥ 화장실과 편의점 매장 사이에는 벽체가 없고, 화장실과 2층 살림집 사 이에도 뚤린 계단이 있을 뿐이어서 조그만 소리도 쉽게 들릴 수 있으며, 당시 2층 살 림집에는 피고인의 처와 출산한 딸이 있어 피고인이 들킬 위험을 감수하면서 범행을 감행하기는 어려운 점, Ⓒ 화장실에는 샷시와 불투명 유리로 된 문이 있어 내부가 보 이지 않고 , 잠글 수 있는 문고리가 있어 피고인이 피해자의 상황을 확인하거나, 문이 열려 있을 것을 예상할 수 없었던 점, ⓒ 화장실 내 변기는 화장실 문 좌측에 위치하 고 있어 그곳에 앉을 경우 설사 문이 열려 있다. 하더라도 외부에 쌓여 있는 과자 등 물건이 보이지 아니하는 점 등에 비추어 보면, 피해자의 진술은 현장상황에 부합하지 않는다.”는 취지로 주장한다.

However, considering the fact that the toilet, which is the place of crime under paragraph (1) of the facts charged, is located within the convenience store and can be immediately moved from the convenience store, and the crime of this case is a crime that can be committed within a short time, and the above toilets are located within the seat of the warehouse after the convenience store and the bar entrance is installed at the second floor be installed, and the above toilets cannot be seen within the second floor be seen as not visible in the above entrance, it is difficult to see that the execution of the crime by the defendant is difficult or impossible solely for the reasons stated in the above (a), (b), and (c). The contents of the above paragraph are related to the situation such as the knobity of the toilet, etc., and it is difficult to view that it falls under the core circumstances to conceal the credibility of the victim's statement concerning the contents of the crime, as stated by the court below.

(2) As to the facts charged under paragraph (1) of this Article, the defense counsel asserts to the effect that “The defendant was in a situation in which it is impossible for the defendant to stand in the sound book of the victim even if the victim presumed that the victim had completed his/her clothes and had taken place for the purpose of raising his/her clothes.”

그러나 피해자는 원심 법정에서 “제가 볼일을 보고 일어난 상태에서 피고인이 쭈그 리고 앉아 핥았습니다. 제가 일어났을 때 피고인이 제 아랫부분을 핥고, 밀어서 주제 앉혔습니다.”라는 취지로 진술(공판기록 62면) 하였는데, 위 진술내용에 의하면 피해자 가 좌변기에서 용변을 마치고 일어서 있는 상태에서 피고인이 그 앞에 쪼그리고 앉을 경우 피고인의 입 부분이 충분히 피해자의 음부에 닿을 것으로 보인다 .

③ As to the facts charged, the defense counsel asserts to the effect that, in light of the fact that “a (a) the location where the Defendant was forced to kill the victim is installed at a place where the passage of the residents is frequent, CCTV is installed, and there is a resistance against the victim, the victim is at risk of exposure; 6) The time of the crime in this case is a time zone where the surroundings is clear at 3-5:0 p.m. and the parking lot of the cultural center, which is the place where the crime is committed, is a place with high risk of frequent traffic of the vehicle, the victim’s statement is inconsistent with the field situation.”

However, even according to the statement of the victim, it cannot be deemed that the Defendant was seriously assault or intimidation in the course of carrying the victim on a vehicle, and the act of indecent act by force by moving the victim from the front seat to the rear seat through the front seat of the vehicle parked in the parking site of the cultural center where the size of the vehicle is small, may not be seen as being able to be seen as being able to be seen in the view of other people. Therefore, it is difficult to view that the circumstance cited by the defense counsel is difficult or impossible to commit the crime under paragraph (2) of the facts charged.

(4) As to the facts charged, the defense counsel asserts to the effect that “the defendant cannot move back from the front seat to the front seat through the wheel seat and the front seat on the front seat on the front seat of the motor vehicle”, and it is difficult for the victim to open and escape a door beyond the front seat through the front seat and the front seat in the situation where the defendant restrains the victim.”

However, it is difficult to see that it is impossible to manipulate the moving location attached to the left side of the driver's seat in the structure of Defendant vehicle from the rear seat of the driver's seat. It is also difficult to see that the Defendant and the victim, who do not have any particular obstacle to the driving position of the arms bridge, move the front seat between the front seat and the rear seat through the front seat of the driver's seat, and the above assertion by the defense counsel is difficult to accept.

3) As to the victim's assertion of possibility of false or confusion

The defense counsel added to the case of indecent act by indecent act in the vehicle under Paragraph (2) of the facts charged as to the case of indecent act by indecent act by indecent act (the contents of this case are the same) in the vehicle under Paragraph (1) of the facts charged, along with the case of indecent act by indecent act by indecent act committed in the vehicle under Paragraph (1) of the facts charged by the court below, that "the victim mentioned only the case of indecent act in the office of the first health teacher which had been forced in the massage, and there was no mentioning about the case of indecent act by indecent act committed in the middle of the elementary school from the sixth of the elementary school, and there was no mentioning about the case of indecent act by indecent act committed in the middle of the Haak Stackto Support Center, which was continued in the middle of the elementary school." In addition to the case of indecent act by indecent act by indecent act committed in the ordinary vehicle under Paragraph (1) of the facts charged by the victim, the modification was made to the effect that Paragraph (1) of the facts charged brought about another case of indecent act by the victim in another toilet."

However, upon examining the facts charged in relation to paragraph (1) of the facts charged, the part concerning the statement of the "office room in the marina" was merely a passive change of the victim's response to the question of the health teacher bB on July 7, 2011, and it is difficult to view that the victim's intent was delivered accurately. In addition, during the process of being asked by the counsel as to whether the victim's change in the toilet in the convenience store was made at the court of the court below, the statement "I am the same as mixing with the statement because I have been investigated about two other cases (62 pages of the trial record)" was made. However, since the victim could not be aware of being investigated as the case in another toilet at the time, it is unlikely that the victim made a mistake by confusion with Paragraph (1) of the facts charged, and it is difficult to see that the victim's statement in the court of the court below also made a false statement as to the whole facts charged as a mistake or confusion between the victim and the victim's statement in the facts charged.

Next, according to the facts charged under paragraph (2) of the facts charged, according to the court below’s legal statement of KimCC (No. 234 pages 234 of the trial) and the witness at the court below’s legal statement, both the case of indecent act by compulsion committed by the victim in Pyeongtaek-si Station and the contents of Paragraph (2) of the facts charged were sexually indecent act on the vehicle. The fact that the victim was able to have sexual intercourse with the victim’s sexual intercourse, and the victim went away after the victim was issued. However, in the case of Pyeongtaek-si Station case, the time of the crime is at night or new, and there are several criminal persons, and it is difficult to view that the entire content of the crime is identical in that the victim was a single criminal person. In addition, the victim appears to have made a statement to the effect that it was difficult to view the victim as being confused with the victim’s sexual assault on April 27, 2012 as the victim’s additional convenience by compulsion within the second time and the victim’s statement to the effect that the victim made a mistake by indecent act by compulsion.

4) As to the assertion on the motive of the victim’s statement

The defense counsel takes the note to the effect that “the victim is a victim who has shown his interest in the school and has been suffering from the injury outside the school” and “the victim makes a false statement in his idea of seeking protection.”

According to the records, from the time of elementary school, the victim was so-called ‘Wang', who had no relative, but did not have a degree of disability, and had a tendency to make a false statement or violent sexual orientation, the victim had received continuous counseling during school life, and frequently went out. The victim made a statement of the case of indecent act in Pyeongtaek-si Station, indecent act in apartment house, and indecent act of indecent act in apartment on April 27, 2012, and on May 10, 2012, the victim stated the case under Article 1 and 2 of the facts charged at the Chungcheongnam-gu Support Center of Chungcheongnam-gu, Chungcheongnam-gu.

However, the victim seems to have caused the situation where the health teacher or the counseling teacher cannot make a statement about his own concern or damage due to the lack of friendship and the fact of injury. In the case of indecent act by compulsion under paragraph (1) of the facts charged, the victim has already made the first statement to the health teacher B around July 7, 2011, as well as the first statement to the health care teacher BB at that time, and consultation was made voluntarily by finding the coreB at that time, and it was not a situation where the victim was asked or consulted due to specific problems such as school life adaptation, etc. At that time, the victim's statement was never thought that the victim was making a false statement (the court statement of the witness B at the time). The victim's statement to the victim was not made in the middle of the crime of indecent act by compulsion and the fact that the victim made a false statement in the apartment at right time and in the middle of the crime of indecent act by compulsion under paragraph (2) in light of the fact that the victim made a false statement or made a false statement in the facts of injury.

B. Ex officio determination

Although a sexual crime against a child or juvenile constitutes a sexual crime subject to registration under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, it is only a matter of whether the crime is a serious conflict with the application of an disclosure order and a notification order under the Act on the Protection of Children and Juveniles from Sexual Abuse (hereinafter referred to as the "Child Sex Protection Act"), and is not subject to an disclosure order and a notification order under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (see, e.g., Supreme Court Decisions 2011Do15062, Jan. 12, 2012; 201Do2501, Mar. 27, 2014; 2013Do13095, Mar. 15, 2014). Moreover, an order of notification under the Child Sex Protection Act may be issued only for a concurrent crime committed after 10260, Apr. 15, 2010 (see, 201).

Nevertheless, it is unlawful that the lower court imposed an order of notification by applying Article 2 of the Addenda to the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Act No. 10258, Apr. 15, 2010) and Article 41(1) and (3) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11162, Jan. 17, 2012) to the crime of this case, which was not subject to the order of notification due to sexual crimes committed against children or juveniles, as the part of the lower judgment’s order of notification cannot be dismissed.

C. Scope of reversal

As examined earlier, the part of the judgment below’s order of notification cannot be reversed, and where the whole or part of the order of notification is unlawful, the part of the judgment below’s order of notification shall be reversed in its entirety, even if there is no error in the remaining part of the defendant’s case (see Supreme Court Decision 2012Do5291, 2012 Jeondo112, Jun. 28, 2012, etc.). Thus, the part of the judgment below’s case of the defendant

3. Judgment on the part of the attachment order case

A. Summary of the claim

Defendant has committed a sexual crime against a minor under the age of 19 and is likely to recommit a sexual crime.

B. The judgment of the court below

The lower court, on the following grounds, determined that it is difficult to readily conclude that the Defendant was in danger of the recidivism of sexual crimes and the recidivism thereof.

(1) A defendant has no record of punishment for committing a sexual crime except for the crime of this case.

② As a result of the application of the Korea EORAS to the Defendant, the level of risk of recidivism is lower than that of the intermediate area (7~12 points) by 7-8 points in total.

③ Although the crime of this case is not good for committing a sex offense against a child, the Defendant appears to have committed an contingent crime because it was impossible to report the victim at the time of a party and restrain a net sexual impulse, and there is insufficient data to verify that the Defendant has a deviation from the sexual intercourse, such as a son’s identification card, etc.

C. Judgment of the court below

The term "risk of recidivism of a sexual crime" under Article 5 (1) of the Act on the Attachment, etc. of Electronic Monitoring of Specific Criminal Offenders means that there is a lack of possibility of recidivism, and it is highly probable that the person subject to the attachment order authority 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 must be objectively assessed and determined objectively by combining various circumstances, such as the occupation and environment of the person subject to the attachment order request, the criminal conduct prior to the crime, the motive and means of the crime, the circumstances after the crime, and the outline of the crime. Further, the term "sexual crime habits" under Article 5 (1) 3 of the above Act refers to any brush, the tendency of the crime, and it means the character of the offender, not the nature of the offender. The existence of a habits should be determined by considering the offender's age, character, occupation, environment, transfer, the motive, method and place of the crime, the time and similarity between the crime and the crime before the crime, etc. (see Supreme Court Decision 200Do198).

Examining the reasoning of the judgment below in light of the above legal principles and records, the judgment of the court below is acceptable.

4. Conclusion

Therefore, since the part of the judgment of the court below on the defendant's case is a ground for ex officio reversal, without examining the grounds for appeal of unfair sentencing by the defendant and the prosecutor, the part of the judgment of the court below on the defendant's case is reversed, and it is again decided as follows after the oral argument. Since the prosecutor's appeal as to the part on the attachment order case among the judgment of the court below is without merit, it is dismissed under Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders and Article 364 (4)

Criminal facts and summary of evidence

The respective corresponding parts of the judgment of the court below are as follows.

Application of Statutes

1. Article applicable to criminal facts;

○ Indecent acts by compulsion after entering a residence: Punishment of sexual crimes committed in the Gu, protection of victims, etc.

Act (Act No. 10258, Apr. 15, 2010) No. 10258 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

As such, Article 5(1) of the Criminal Act is prescribed by Act No. 10261 of the same day;

Article 319(1) of the Criminal Act, Article 298 of the Criminal Act

The point of indecent acts by force by minors under the age of 13: Punishment of each old sexual crime and protection of victims thereof.

Act on the Punishment, etc. of Sexual Crimes (Act No. 10258, Apr. 15, 2010)

Article 8 of the Act on Special Cases Concerning the Establishment of a Special Cases and then repealed by Act No. 10261 of the same day)

2 Paragraph 3 of this Article, Article 298 of the Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act [Special Act on the Punishment, etc. of Sexual Crimes (the age of 13)]

A minor indecent act by compulsion) and a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.)

The crimes prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with a more severe punishment

Punishment

1. Selection of punishment;

Due care for the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.)

Imprisonment with prison labor and a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years of age)

Indecent Act by compulsion), each choice of imprisonment on the crime

1. Aggravation for concurrent crimes;

Sexual assault under the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

Aggravated concurrent crimes with punishment prescribed in the Act on Special Cases concerning the Punishment, etc. of Crimes (Rape, etc. with Residence)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. An order for disclosure;

The former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010)

Article 38 of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Law No. 9765, No. 2009)

9.1) Article 3.1

1. Order to complete programs;

Article 4 and a child of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Law No. 11572, December 18, 2012), Article 4

Article 21 of the Act on the Protection of Juveniles against Sexual Abuse

Registration of Personal Information

Where a conviction becomes final and conclusive for each crime committed in the judgment, the Defendant is a person subject to registration of personal information under Article 33(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11047, Sep. 16, 2012); thus, the Defendant is obligated to submit personal information to the competent authority pursuant to Articles 5(1) and 43 of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Act No. 11556, Dec. 18, 2012).

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for not less than two years and six months to 11 months; and

2. Application of the sentencing criteria;

(a) Indecent acts by compulsion after entering a residence;

[Determination of Punishment] The Second Type of Indecent Act by Indecent Acts by Force (subject to 13 years of age or older)

Indecent acts by compulsion, such as brutation

【Special Exemplarys】 Victims vulnerable to crimes

[Determination of Recommendation Area] Aggravation

[Scope of Recommendation] Four years to Seven years of imprisonment

(c) Indecent acts by compulsion against minors under the age of 13;

[Determination of Punishment] Types 3 (Indecent Act by Compulsion) of sex crimes subject to the age of 13

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Four years to Seven years of imprisonment

(c) Scope of recommendations based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than four years nor more than ten years to June;

[A sexual crime under paragraph (1) of the Decision according to the order of high limit of the recommended sentence scope in the sentencing guidelines

Basic crimes against a violation of the Act on Special Cases concerning the Punishment, etc. of Residence (Rape, Rape, etc.) and sexual assault under paragraph (2) of the judgment.

A concurrent crime in violation of the Act on Special Cases concerning the Punishment, etc. of Crimes (Indecent Acts by minors under 13 years of age) is committed;

Aggravated increase of multiple crimes according to the standards for handling veterinary crimes (the lower shall apply four years, the lowest limit of basic crimes);

The upper limit shall be seven years, which is the upper limit of basic crimes, 1/2 of the upper limit of the scope of punishment for concurrent crimes)

3. Determination of sentence;

The crime of this case is committed by indecent act on two occasions against the victim aged 66, and the responsibility for the crime is heavy, and no particular measure for recovery of damage has been taken up until now, due to mental impulses caused by the crime of this case, the victim suffers from stress disorder, depression, and suffering from depression, and is unable to adapt properly to school life. Meanwhile, the defendant has no ability to impose any criminal punishment, and he has actively been engaged in activities as the general affairs of community service organizations from around 2009, and the health status is not good due to the age of 66 years.

The principal offender (Presiding Judge)

Kim Jin-ray

Long-term Private Register

1) The recording is called 'the moment when the recording is sent', but according to the statement recording CD, 'the moment when the recording is sent' seems to be 'the moment when the recording is sent.

2) On the other hand, in the process of the victim's oral statement with his clothes extended over the victim's bridge and after the victim's legal statement, the statement "...... where the vehicle's body was located in the front seat (the trial record was 69 pages and above the trial record with the front seat), the door was followed and the victim escaped. The victim's ability to express his/her speech clothes was exceeded.

In consideration of D, the victim has fleded and got out of the vehicle while the victim was unable to properly display clothes inside the vehicle.

It is understood in this sense.

3) The lower court, on the premise that the time of the instant crime was prior to April 15, 2010, under the former Act on the Punishment of Sexual Crimes and the Protection of Victims, Etc. (amended by the Act on April 15, 2010)

The enactment of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes by Act No. 10258, before the repeal by Act No. 10261 on the same day

was used.

4) The upper limit of imprisonment with labor is governed by the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter “former Criminal Act”).