Defendant

Both parties

Sub-sections

Attorney Lee Dong-ho (Korean)

Seoul Central District Court Decision 2010 Gohap987, 2010 Gogo18 (Consolidated) Decided October 1, 2010

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

A defendant shall be punished by imprisonment for five years.

The prosecutor's appeal concerning the case for which an attachment order is requested shall be dismissed in the judgment below.

1. Part of the defendant's case

A. Summary of grounds for appeal

The sentence of the court below is too heavy or too unhued (the defendant), and it is improper to conduct an examination.

B. Ex officio determination

According to Article 3(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 9765, Jun. 9, 2009) (amended by Act No. 10391, Jul. 23, 2010), an order to disclose under Article 38 of the same Act shall be applied to a person who first commits a sex offense against a child or juvenile and has been convicted of such offense after the enforcement date of the same Act, and Article 3(4) of the Addenda of the same Act shall be subject to the first time after the final judgment of conviction. According to Article 3(4) of the same Act, at the time of the enforcement of the same Act, an order to disclose under Article 38 of the same Act may also be issued to a person who has violated the Act on the Protection of Juveniles against Sexual Abuse (Act No. 7801) or the Act on the Protection of Juveniles against Sexual Abuse (Act No. 8634,

However, the Defendant’s crime of this case is not in violation of the former Act on the Protection of Juveniles against Sexual Abuse, but is in violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, and thus cannot be said to be subject to disclosure order under Article 3(4) of the Addenda of the Act on the Protection of Children and Juveniles against Sexual Abuse and Article 3(4) of the Addenda of the former Act on the Protection

Therefore, the judgment of the court below that sentenced the defendant to disclose by applying Article 38 (1) 1 of the Act on the Protection of Children and Juveniles against Sexual Abuse is unlawful. In this regard, the part of the judgment of the court below on the defendant's case cannot be reversed.

2. Part of the case for which the attachment order is requested

A. Summary of the grounds for appeal by the prosecutor

In light of the content of the instant crime, the lower court erred by misapprehending the legal doctrine, thereby dismissing the Defendant’s request for attachment order, even if the Defendant was sufficiently aware of “the risk of re-crime.”

B. Determination

The lower court determined to the effect that it is difficult to readily conclude the risk of recidivism by the Defendant on the grounds that: (a) the Defendant did not have any previous criminal records other than once before and after the fine regarding violence; (b) the Defendant committed the instant crime by putting the victim, who is his or her father or mother, after his or her his or her his or her his or her father, not by actively coloring the subject of the crime or by creating an opportunity to commit the crime; (c) according to the Korea risk assessment scale for committing the crime of sexual crime materials; (d) the Defendant’s risk of recidivism is assessed to the middle degree; and (e) the person who requested the attachment order, along with his or her wife, is living together with his or her wife in a de facto marital relationship.

According to the evidence duly adopted by the court below and completed the examination of evidence, the above circumstances based on the judgment of the court below are justified, and there is no illegality in the prosecutor's assertion. Thus, the judgment of the court below is justified.

3. Conclusion

Therefore, since the part of the defendant's case is a ground for ex officio reversal, under Article 364 (2) of the Criminal Procedure Act, without examining the argument of unfair sentencing, the part of the defendant's case among the judgment below is reversed, and the defendant's appeal on the case of request for attachment order is again decided as follows. Since the prosecutor's appeal on the case of request for attachment order is without merit, it is dismissed under Article 35 of the Act on the Electronic Monitoring, etc. of Specific

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the entries in each corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act

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

Article 8-2(1) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 9110 of Jun. 13, 2008), Article 297 of the Criminal Act (the crime of rape of minors under the age of 13), Article 8-2(2) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (amended by Act No. 8059 of Oct. 27, 2006), Article 298 of the Criminal Act (amended by Act No. 8059 of Oct. 27, 2006), Article 298 of the Criminal Act (amended by Act No. 810 of Jun. 13, 2008), Article 8-2(3) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof, Article 298 of the Criminal Act (amended by Act No. 910 of Jun. 13, 2008).

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes provided for in the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (Violation of the Act on the Protection, etc. of Victims (Minor Rape, etc. under Fifteen Years of Age) due to Rape, etc. on February 2, 2007 with the largest penalty

It is reasonable to take into account the following circumstances: (a) the Defendant has been living without any previous conviction except once a fine; (b) the current situation where the Defendant has to provide his or her wife and his or her dependent economically; and (c) the Defendant shows an attitude against himself or herself and agreed with the victim in the original trial

However, it is difficult to deny the charge of rape that the defendant has not yet established the concept of sex, and committed the crime three times of rape and four times of indecent act by indecent act against the victim who is a child, who has yet to be sexually committed, and the victim trusted the defendant and sent the defendant at the home of the defendant for a considerable time, or considerable time. The defendant committed the crime of this case using such trust, which is not good, and the defendant denies the charge of rape to the effect that "the victim does not distinguish whether he is his finger or the defendant's sexual intercourse", and it is difficult to deny that the victim suffered second second damages to the victim, such as having the victim go to the court below and give testimony, and the scope of recommending sentencing guidelines for the crime of this case is four years and 11 years in imprisonment, and other various circumstances.

Judges Kim Jae-chul (Presiding Judge)