2018Gohap548 Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

A

Woryoung (prosecutions) and astronomical Appellants (Trial)

Attorney Lee Dong-hwan (Korean)

January 15, 2019

A defendant shall be punished by imprisonment for not less than two years and six months.

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

An employment restriction shall be ordered to a child or juvenile-related institution, etc. for three years.

Criminal History Office

Around August 5, 2017, the Defendant was accommodated in the Songpa-gu Seoul Metropolitan City D Hotel with the victim B (name, woman, C) on the ground that he/she prepared a test for a public notice of examination.

At around 03:00 on August 6, 2017, the Defendant: (a) took advantage of the victim’s scambling and diving in a scam room of the above telecom, and she scam and scam the chest; (b) continued to scam the victim’s chest and clothes; (c) attempted to scam the Defendant’s sexual organ into the part of the victim’s sound; (d) however, the Defendant did not come to the Defendant’s attempted to scam with the wind to restrain the victim from scaming the scam.

Summary of Evidence

1. Partial statement of the defendant;

1. Legal statement of the witness B;

1. The written complaint prepared by B (tentative name) and the written statement prepared by the police officer with respect to B (tentative name);

1. Investigation report (for the victims’ messages sent and received with suspects),

Application of Statutes

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

Article 7(6), (4), and (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 299 of the Criminal Act (Appointment of Imprisonment with Labor)

1. Statutory mitigation;

Articles 25(2) and 55(1)3 (Attempts) of the Criminal Act

1. Order to complete programs;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. In full view of all the circumstances such as the benefits expected by the disclosure order or the disclosure order and the effect of prevention, disadvantages and side effects, etc., considering the following: (a) the proviso to Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that the defendant has no record of punishment for the same kind of crime; and (b) the crime of this case alone, it is difficult to readily conclude that the defendant has a criminal tendency against many unspecified persons; and (c) the defendant is a person living in a certain residence and has a relatively obvious social relation; (d) the sentence of a sentence; (d) the registration of personal information; and (e) the completion of sexual assault treatment program, it is anticipated

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by 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. 15352, Jan. 16, 2018)

Where a conviction becomes final and conclusive on the criminal facts in the judgment that are subject to registration and submission of personal information, 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 he/she shall submit personal information to the competent agency pursuant

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

The defendant did not commence the commission of the crime of quasi-rape.

2. Determination

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, the fact that the Defendant attempted to rape the victim who was unable to resist as stated in the judgment is sufficiently recognized. The Defendant and the defense counsel’s assertion is not acceptable.

① 피고인은 피해자로부터 범죄사실에 대하여 추궁받자 E 메시지로 '미안하다', '변명할 여지도 없고', '처음에 속옷 풀고 가슴 만지고 입 맞추고 하의 벗긴 다음에 삽입하려다가 깨려는 기미 보여서 자는 시늉했습니다'라고 대답하였다(증거기록 30, 31쪽).

② The victim consistently sleeps from the investigative agency to the court. The victim consistently sleeps from the investigative agency to the court. As such, the victim was sleeped with both clothes and inner clothes, and the Defendant stated that he was sleeped next to the Defendant (which does not dispute about the facts). If the Defendant was solely intended to commit an indecent act, it does not seem that the victim was discharged from all of the victim’s lower and lower clothes.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for two years and six months to fifteen years; and

2. Not applying the sentencing criteria: An attempted offender shall not be subject to the sentencing criteria.

3. Determination of sentence;

The crime of this case is intended to have sexual intercourse with a victim who had been under the influence of alcohol by the Defendant, and thus, the nature of the crime is not good considering the situation at the time of the crime, the personal relationship between the Defendant and the victim, etc. The victim appears to have received considerable sexual humiliation and mental impulse. According to the statement by the Defendant and the victim, the Defendant committed indecent act against the victim even before.

In spite of the fact that the victim received a letter from the victim, the victim again committed a sex offense. While the defendant thought the victim as a relative, it is doubtful that it is not a wrong sexual object. The victim is trying to punish the defendant.

However, as to the facts themselves, the accused has been led to a confession, and there is no criminal records against the accused. In addition, in comprehensive consideration of the various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the age, character and conduct, environment, family relationship, motive, means and consequence of the crime, the circumstances after the crime, etc., the punishment shall be determined as per the order.

The presiding judge, judges, and the Yellow Constitution

Judges Kim Gin-soo

Judges Kim Gin-young