(영문) 대전지방법원 공주지원 2019.8.7. 선고 2019고합13 판결

The defendant shall be subject to employment restrictions for ten years in each of the institutions related to children and juveniles, etc. and welfare facilities for disabled persons.

Reasons

Punishment of the crime

【Criminal Power】

On October 24, 2003, the Defendant was sentenced to 8 years of imprisonment for a violation of the Act on the Punishment of Sexual Crimes and Protection of Victims (Special Robbery, Rape, etc.) at the Daejeon High Court, and the said judgment became final and conclusive on November 1, 2003.

【Criminal Facts】

On July 25, 2002, at around 23:30, the Defendant: (a) reported the victim D (n, 16 years of age) who passed around the C Elementary School located in Chungcheongnam-gun, Chungcheongnam-gun; (b) taken the mind to rape the victim; (c) made the victim approaching the back of the road in the E Village; and (d) threatened the victim with the victim’s shoulder, etc., “I am am hyshhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

The Defendant continued to divide the victim's shoulder and arms into the victim's shoulder and arms on the floor, and put them on the victim's shoulder and arms on the floor, and sexual intercourse was committed once by inserting them into the part of the victim's sound, by threatening "only once, with a sound stalth, being lustly cut off, seeing the victim's body in hand, seeing the face, and seeing off the face."

The Defendant, by rapeing the victim as above, caused the victim to suffer bodily injury, such as a dog of a shoulder and a dog of a shoulder, which requires approximately two weeks of treatment.

Summary of Evidence

1. Defendant's legal statement;

1. Each police statement made to D or F;

1. A copy of an appraisal report;

1. Copies of medical records of sexual assault victims, and copies of medical records of sexual assault victims;

1. Investigation report (on-site confirmation and attachment of site photographs, and on-site calendar of July 2002 at the Sejong-si);

1. Previous records of judgment: Criminal records, inquiry reports and investigation reports (the same type of criminal records and court records of a suspect);

Application of Statutes

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

Articles 301 and 297 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012);

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Reduction of punishment following concurrent crimes;

Article 39(1) latter part of Article 39(1) and Article 55(1)3 of the Criminal Act [Taking account of equity in cases where the crime of causing rape in the market and the crime of violating the Act on the Punishment of Sexual Crimes, Protection of Victims thereof, etc. (Special Robbery, Rape, etc.) are

1. Order to complete programs;

Article 4 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 11572, Dec. 18, 2012); Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018); Article 2 of the Addenda to the Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018); the main sentence of Article 59-3(1) of the Act on Welfare of Persons with Disabilities

Judgment on disclosure and notification orders

Since a prosecutor requests the Defendant to issue an order to disclose or notify personal information, even if the Defendant, who committed a sexual crime against a child or juvenile, was indicted for violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes or for violating the Criminal Act, the order to disclose or notify such information shall be imposed pursuant to the Act on the Protection of Children and Juveniles against Sexual Abuse (see Supreme Court Decision 2011Do15062, 201 Jeondo250, Jan. 12, 201). The crime of bodily harm from rape in the judgment of the instant case (amended by Act No. 7801, Dec. 29, 2005) is committed against a child or juvenile before and after 206,6,30, and 30, which is subject to the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10391, Jul. 23, 2010; 2014Do1614, Jan. 16, 2010>

Therefore, it is not possible to order the disclosure or notification of personal information against the defendant.

Judgment on the argument of the defendant and defense counsel

1. Defendant and several defense counsel’s assertion

At the time of committing the instant crime, the Defendant had a weak ability to discern things or make decisions due to the sexual intercourse, record, habitual walls, etc.

2. Determination

According to each fact-finding reply by the Medical Treatment and Custody Director, the defendant committed the crime of rape, bodily injury, etc. around April 23, 201, and on September 23, 2011, the Daejeon District Court sentenced the defendant to nine years of imprisonment due to rape, bodily injury, etc. on September 23, 2011, and the above judgment became final and conclusive on December 24, 2011. The above judgment determined that the defendant was in a state of mental disability due to habitual barriers, etc. in light of the result of the defendant's mental diagnosis against the defendant. The defendant was admitted to the Medical Treatment and Custody Office on January 4, 2012 and was diagnosed with sexual impulse medication, gender-sensitive behavior education, etc. until now.

However, since the crime of this case was committed around July 25, 2002, there was a difference of at least eight years from the day of the crime of rape, injury, etc., and the defendant again committed the crime of special robbery, rape, etc. on or around March 2003, immediately after the crime of this case, and on October 24, 2003, at the Daejeon High Court sentenced 8 years to imprisonment for the crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims (special robbery, etc.) and became final and conclusive on November 1, 2003. In light of the above, it is difficult to deem that the defendant did not assert mental and physical disability at that time, and did not receive the recognition from the court as to mental and physical disability from the court.

Therefore, we cannot accept the defendant's and defense counsel's arguments.

Reasons for sentencing

1. The scope of punishment by law: Imprisonment for not less than two years and not less than six months;

2. Non-application of the sentencing criteria: The sentencing criteria shall not apply to the crimes of rape in this case, which have become final and conclusive, since they are in a concurrent relationship with those of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (special robbery, rape, etc.).

3. Determination of sentence: Imprisonment for 2 years and 6 months; and

The crime of this case is a case in which the defendant sustained bodily or mental harm by rapeing the victim who is a child or juvenile at night, and its nature is very poor. In addition, the defendant's crime of this case appears to have suffered considerable physical or mental harm with the victim's sexual humiliation, and the defendant did not receive any suspicion from the victim. Such circumstances are disadvantageous to the defendant.

On the other hand, the fact that the defendant recognized his mistake and reflects his depth, the defendant and his family members seem to have endeavored to reach an agreement with the victim, and the defendant has significantly improved distorted sexual accidents through decent treatment since being admitted to a medical treatment and custody center, and is living an exemplary ward for a long time, etc. are favorable to the defendant.

In addition, taking into account equity in cases where the crime of injury resulting from rape and the crime of violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims, etc. (special robbery, rape, etc.) which became final and conclusive at the same time, and comprehensively taking into account all the sentencing factors of the Defendant’s age, character and conduct, environment, family relationship, motive and means of the crime, circumstances before and after the crime, etc., and the records and trial process

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a sex offense subject to registration, the Defendant is obligated to submit personal information to the competent agency pursuant to Article 43 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Act No. 14412, Dec. 20, 2016) and Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.