(Chuncheon) Violation of Special Act on the Punishment, etc. of Sexual Crimes (Special Cases concerning the Punishment, etc. of Sexual Crimes) 2017No61

Sdecent Acts)

A person shall be appointed.

Prosecutor

Manna (Institution of Prosecution), Han Jinna (Trial)

Attorney J (Court-Appointed)

Chuncheon District Court Decision 2017Gohap17 Decided April 28, 2017

July 26, 2017

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

except that the execution of the above sentence shall be suspended for two years from the date this judgment became final and conclusive.

The defendant shall be ordered to take a 40-hour course for sexual assault treatment.

1. Summary of grounds for appeal (misunderstanding of facts and misunderstanding of legal principles);

As stated in the facts charged, the Defendant committed an indecent act by compulsion against the victim’s will, such as the victim’s death, and committed an indecent act.

2. Facts of recognition;

The following facts are acknowledged according to the evidence adopted and examined by the court below and the trial court:

A. The victim E (the 63 years of age, the 63 years of age, the 100) resides together with two married children, the friend, and the 2 grandchildren in the place of residence of the D Park located in Chuncheon-si (the hereinafter referred to as the “park”). The victim is the disabled in the second degree of disability. The victim is the disabled in the second degree of disability in the second degree of disability.

B. From March 7, 2016, the Defendant, who resides with the wife K in his/her residence, was aware of the victim while working as a public service worker belonging to the Chuncheon viewing and managing the instant park while cleaning and managing the said park.

C. F around June 2016, the victim came to know of the person who manages the instant park, and the person was aware of himself/herself of his/her sexual organ on his/her own sexual organ, and the sexual intercourse was defective and annoyed. “F sent the word “.”

D. F, around August 27, 2016: around 30, 2016: Around 30, the victim was found and the victim and the defendant were seated in the instant park, resulting in only the victim and the defendant being seated in the event at the instant park, leading up to the victim’s seat, leading up to the victim’s boom, leading up to several arms.

E. F returned the victim at home and confirmed the Defendant accurately, and the Defendant responded several times to son, and the Defendant respondeded to knee, knee, knee, knee, with the Defendant’s 112 report. However, F reported 112 to the police station on August 27, 2016. On August 27, 2016, the Defendant was as the police station on August 27, 2016, and “A knee, knee, knee, as a woman who is not aware of in the event of the instant park at around 40: (a) there was a fact that the sexual donation was sent to one another on the face of clothes; and (b) there was no verbal consent at the time, but there was a fact that “the statement” was prepared.

F. On August 27, 2016, the victim respondeded to the Gangseo-gu Seobaba Center as follows.

417 : The 417 Gaba and the lower Gaba? 417 : To do so, the lower court did not have been able to do so, ? to grow up.

421. The answer ? 421 of the PPS ? not the answer ? ? 421 of the PPS : To see the nivers of why why is why or why is why is why there is no reason.

422 : Written 422 Doz., Maz., Maz., Maz., Maz., Maz., Maz., Maz., Maz., Maz., Maz., Maz., Maz., Maz., Maz.

428 : The answer No. 428 No. 1 that was that day ? ? ? 428 : (a) you do so, do so, do so, do so, do you do so, do you do so, and do so, do you do so, and do you do so, and do so, 493 : why you do so, why you do so.

493 Response: N.N.

494문 : 어때요 ? 494답 : 뭘 어때 싫지 .

495 Sentence 495: He does not refuse to do so, and she is in fluenite 495 : He does not do so and he does not do so.

496 Questions: Every person who does not refuse to do his or her behavior continuously? 496 answer: fora.

On September 2, 2016, the Defendant reported to the police on the interrogation of a suspect at the police station on September 2, 2016. So, knee-kel-kel-kel-kel-kel-kel-kel-kel-kel-kel-kel-kel-kel-kel-kel-kel-kel-nick-kel-kel-kel-kel-kel-kel-kel-kel-nick-kel-knick-kick-kick-kick-kick-kick-kel-kick-kel-kick-kick-kick-kel-kick-kn

H. On January 24, 2017, the Defendant was under interrogation at the prosecutor’s office, and came to know that he started to work for public service in the instant park from March 2016, and came to know that he finitely finitely finitely finites with the victim who emitted from his book daily in the instant park. The Defendant stated that he was unable to finitely fin down his left side and finite the left left side body due to the inconvenience of the victim’s heavy wind.

3. Determination

A. The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of violence or intimidation, but also the case where the act of assault itself is recognized as an indecent act. In this case, inasmuch as the assault does not necessarily require the degree of suppressing the other party’s intent and the exercise of tangible force against the other party’s will, regardless of its force, it does not necessarily mean that the assault is against the other party’s will (Supreme Court Decision 2001Do2417 Decided April 26, 2002).

나. 살피건대, 앞서 인정한 사실에 의하여 알 수 있는 아래와 같은 사정을 종합하면 , 피고인이 공소사실 기재와 같이 피해자를 강제추행한 사실이 인정된다 . 1 ) 피고인과 피해자는 2016. 3. 경 처음 알게 되었고, 피해자는 피고인에게 처가 있다는 사실을 알고 있었으며, 피고인이 피해자의 음부와 가슴을 만지는 데 대해 지속적으로 거부의사를 표시하였다. 그러나 피고인은 피해자의 의사에 반하는 것을 인식하면서도 공소사실 기재와 같이 피해자의 음부를 만졌고, 이는 폭행 자체가 추행행위인 경우에 해당한다. 이와 같은 경우를 흔히 ' 기습추행 ' 이라고 부르기는 하나, 이는 강제추행의 본래적 형태인 폭행 · 협박 선행형과 구별하기 위한 명칭일 뿐, 피해자가 가해자의 추행의도를 알아챌 겨를도 없이 이루어지는 기습성이 있어야만 ' 폭행 자체가 추행행위인 경우 ' 에 해당하게 되는 것은 아니다. ' 기습추행 ' 은 피해자의 의사에 반하는 유형력의 행사를 통해 피해자의 성적 의사결정권을 침해하기 때문에 강제추행에 해당하게 되는 것이지, 그 행위가 피해자가 예상할 수 없이 급작스럽게 순간적으로 이루어지기 때문에 강제추행에 해당하게 되는 것은 아니기 때문이다 .

2) The Defendant: (a) knee kne kel kel kel kelel kelel kneel kel kneel kneel kne; (b) the police believed that the other female was wrong without permission that the victim was unable to resist even if the left arms and left bridge was obstructed; (c) on the first trial date of the lower court, the Defendant stated that all facts charged were recognized on the trial date of the lower court (the Defendant stated in the lower court that the confession was not forced only once on the second trial date after the resumption of the pleading, but also on the second trial date of the lower court).

3) While the victim continuously committed an indecent act against the Defendant, continuing to go to the instant park is difficult to leave the left arms and the left bridge due to the lack of living conditions until the age of dementia. It seems that the instant park exists in the nearest place of the victim’s residence.

4) A park be held in an open space where the place of the instant crime was committed. While people have access to the place, the victim may have avoided another place or not requested the support of the surrounding area due to the circumstance that the victim did not have any serious indecent act to the extent that he/she did not cause inconvenience, sense of shame, duplicating, or request others to help. As such, the victim cannot be deemed to have implicitly consented to the Defendant’s indecent act solely on the sole basis thereof.

4. Conclusion

Therefore, the prosecutor's appeal is with merit, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is decided as follows.

Criminal facts

From March 7, 2016, the Defendant was aware of the victim E (the age of 63 and the age of 63) who is the disabled of the second degree with the delay in the 2nd degree due to the above park while working as a public service worker belonging to Chuncheon City from around March 7, 2016, while cleaning and managing the D Park located in Chuncheon City. The Defendant was well aware of the fact that the traffic of the left part and the left side bridge is very inconvenient due to brain stroke.

1. On June 14, 2016, at around 00, the Defendant: (a) committed an indecent act against the victim while sitting in the event with the victim in the above park; (b) committed an indecent act against the victim; (c) took the arms of the victim; and (d) put the hand on the Defendant’s bucks; and (c) kisssskn by hand bucks of the victim. Accordingly, the Defendant committed an indecent act against the victim with physical disabilities.

2. On August 27, 2016: (a) around 20, the Defendant: (b) committed an indecent act against the victim while sitting in the event with the victim; (c) committed an indecent act on the part of the victim; (d) had the victim take the arms of the victim; and (e) had the hand go on the part of the Defendant’s sexual organ by laying the hand on the part of the Defendant’s sexual organ; and (e) had the victim talked with the part of the victim by hand. Accordingly, the Defendant committed an indecent act by force against the victim with physical disability.

Summary of Evidence

1. Statement of the court below by the defendant at the first trial (for the first trial date),

1. Legal statement of witness E in the trial;

1. Entry of a copy of a welfare card (E);

1. Statement made in the statement of victim E;

1. Statement made by the police officer on F;

1. Application of statutes governing field CCTV files CDs;

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

Article 6(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and Article 298 of the Criminal Act.

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act / [Aggravated Punishment on August 27, 2016 (Violation of Special Act on the Punishment, etc. of Sexual Crimes (Indecent Acts by Persons with Disabilities)]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (see, e.g., Supreme Court Decision 201Da1541, Apr. 2,

1. Suspension of execution;

Article 62(1) of the Criminal Act (General Conditions favorable to the Reasons for Sentencing specified below)

1. Order to attend lectures;

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

1. Exemption from an order for disclosure and notification;

Articles 47(1) and 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles’ Sex (the crime of this case is not against many unspecified victims, and the defendant has no record of being punished for sexual crimes before committing the crime of this case, and to a certain extent through registration of personal information and taking lectures in the treatment of sexual assault.

In light of the fact that it seems possible to prevent the recidivism of a defendant, and other circumstances, such as the defendant's age, character and conduct, family environment, and social relationship, the effect of the prevention of sexual crimes, etc. which can be achieved by the disclosure and notification order, compared to the disadvantages and expected side effects that the defendant suffers, seems to be relatively less. Therefore, where this judgment becomes final and conclusive to register and submit personal information to the defendant pursuant to the main sentence of Article 42 (1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the defendant is a person subject to registration of personal information pursuant to the main sentence of Article 42 (1) of the same Act, and is obligated to submit his/her personal information to the head of the competent agency

1. Reasons for sentencing: Imprisonment with prison labor for a year and June to June 22;

2. Scope of recommended sentences according to the sentencing criteria;

Second Crimes

[Scope of Recommendation] General Standards for Sex Offenses against Persons with Disabilities (At least 13 years of age)

[Special Mitigation] 2 Crimes in the event that the degree of indecent conduct is weak (one and two types)

[Scope of Recommendation] General Standards for Sex Offenses against Persons with Disabilities (At least 13 years of age)

[Special Mitigations] Where the degree of indecent conduct is weak (one, two types)

* The scope of final sentence due to the aggravation of multiple offenses: one year and six months from June to four years;

3. Determination of sentence;

The fact that the defendant's act of indecent act by compulsion of the victim with physical disability is bad in the nature of the crime, and that the victim was not able to use and was not recovered from the victim is disadvantageous.

The degree of indecent conduct is relatively weak, the defendant is aged 71 years of age, and the first offender who has no criminal record is a favorable condition.

In addition, the punishment shall be determined in consideration of various circumstances, such as the character, conduct, intelligence and environment of the defendant, relationship with the victim, motive, means and consequence of the crime, and circumstances after the crime.

Judges Kim Jae-ho

Judges Park Sung-sung

Judges' Branch Office Counter