2018 Highest 6426 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras, etc.)

2019 early 428 Application for a compensation order

A

His/her handym (prosecution), Han-kin (public trial)

Attorney Kim Hyun-soo

B1)

March 28, 2019

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

To order the defendant to complete the sexual assault treatment program for 40 hours.

In order to order the provisional payment of an amount equivalent to the above fine.

An applicant for compensation shall be dismissed.

Criminal facts

1. Injury;

At around 23:50 on June 2, 2018, the Defendant: (a) brought about a face that needs to be treated for about two weeks in case of the victim B (n, 25 years of age) who was in a relationship with the victim B (n, n, am, am, am, etc.).

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras and photographing);

The Defendant, at the above date and place, taken a face-to-face screen with the victim who saw a cell phone with a camera function in his table and her clothes.

Accordingly, the defendant taken the body of the victim who could cause sexual humiliation or shame by using a camera, against his will.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness B;

1. A or B photograph of the suspect A or B;

1. A certificate of injury diagnosis, certificate of issuance of a copy of medical records, certificate of outpatient treatment, and opinion;

1. Cases accompanied by a report of investigation (a case confirming the contents of the cell phone images taken by the suspect at the time), a visual recording room;

1. Donated image attached to a cell phone taken by a suspect at the telecom (including CDs);

[Defendant's assertion that it cannot be punished as a crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, and even if not, illegality should be avoided, since the victim was taken to verify how violent change is at the time of withdrawal of alcohol and there was no sexual purpose.

However, the Defendant, while under the influence of alcohol, taken the body of the victim who can be used in the bed with the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the bed of the victim.

In light of the fact that the defendant tried to cover the victim with an interest and frightened the victim under the influence of alcohol, it is difficult to view that the defendant has an objective to meet his/her sexual desire. However, such circumstance alone cannot be said that the defendant's act does not reflect the victim's desire to cause a sense of sexual shame, and it cannot be viewed as a legitimate act that does not go against social norms.

Application of Statutes

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

Article 14(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 15977, Dec. 18, 2018); Article 257(1) of the Criminal Act (the occupation of injury) and the selection of each fine.

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order to complete programs;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Dismissal of application for compensation;

Articles 32(1)3 and 25(3)3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (not including where the scope of liability for damages is unclear)

Registration and submission of personal information;

Where a conviction becomes final and conclusive with respect to a crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as "Ameras"), the defendant is a person subject to registration of personal information pursuant to Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and the defendant is obligated to submit personal information to the competent

Meanwhile, the Defendant’s personal information registration period is ten years pursuant to Article 45(1)4 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. This is the shortest period among the periods stipulated in each subparagraph of Article 45(1). Therefore, it is not likely that the period of personal information registration should be determined more than the period imposed on the sentence by applying Article 45(4) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. Accordingly, the Defendant should not separately shorten the period of personal information registration against

Disclosure Order and Exemption from Notice Order

In full view of the Defendant’s age, occupation, risk of repeating a crime, details and motive of a crime, method and seriousness of a crime, disclosure order or notification order, the degree and expected side effects of the Defendant’s disadvantage and anticipated side effects, the preventive effects of a sexual crime subject to registration that may be achieved therefrom, and the effect of protecting the victims thereof, etc., the Defendant shall not be ordered to disclose or notify personal information pursuant to Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso of Article 49(1) and the proviso of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse. Thus, the Defendant shall not be ordered to issue an disclosure

Exemption from Employment Restriction Orders

Considering the Defendant’s age, occupation, existence of history of sex offense, details and motive of the offense, method of committing the offense, severity of the offense, etc., it is determined that there is a special circumstance that may not significantly lower the risk of re-offending or restrict employment pursuant to the proviso to Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, and thus, an employment restriction order shall not be issued to the Defendant.

Reasons for sentencing

The following circumstances and the defendant's age, character and conduct, environment, motive, means and consequence of the crime, and various sentencing conditions shown in the pleadings of this case, such as the circumstances after the crime, shall be determined as ordered.

- Written carbons for victims

- The first offense that may be considered in reflect / circumstances

Judges Kim Sang-chul

1) The applicant is the victim of the instant sexual crime, and does not include all the addresses in order to protect the victim’s personal information.