(영문) 서울중앙지방법원 2017.6.8. 선고 2017고합355 판결

Information on a defendant and a person subject to an attachment order shall be disclosed and notified through an information and communications network for three years (However, the summary of a sexual crime disclosed and notified shall be limited to the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse as indicated in the judgment.

The defendant and the person subject to the request for attachment order shall be ordered to attach an electronic tracking device for three years.

Defendant and the respondent for an attachment order shall be subject to the matters to be observed in the attached Form.

Reasons

Criminal facts and the facts constituting the attachment order

【Criminal Records】

On December 16, 2010 and September 12, 2013, the defendant and the person against whom the attachment order was requested (hereinafter referred to as the "defendant") were sentenced to imprisonment with prison labor for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) in the Suwon District Court's Ansan Branch, and for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (thief) in the Act on the Aggravated Punishment, etc. of Specific Crimes (thief). On August 26, 2016, the execution of the final sentence was completed on February 18, 2017.

【Criminal Facts】

1. Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

피고인은 2017. 3. 25. 03:42경 김포시 C에 있는 'D사우나' 안에서, 옆으로 누워 자고 있는 피해자 E(남, 17세)의 모습을 보고 성욕을 느낀 나머지 피해자의 바로 뒤에서, 피해자와 같은 방향으로 누운 다음 왼쪽 무릎을 피해자의 왼쪽 허벅지 위에 올리고 왼손으로 피해자의 엉덩이와 자신의 성기를 만지고 성기를 피해자의 엉덩이에 문지르고 비볐다.

Accordingly, the defendant committed indecent acts against children and juveniles for about five minutes by taking advantage of their state of impossibility to resist.

2. Violation of the Aggravated Punishment Act;

A. On March 25, 2017, at around 04:08, the Defendant used the gap in the victim E in the “Drata” located in Kimpo-si, Kimpo-si, Kimpo-si, where the victim E was divingd, and carried out a half wall, the victim’s left part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part part of the victim, and a cash of 20,000 won, a student card, a student card in the Agricultural Cooperatives, and a evidentiary photograph.

B. At around 10:55 on March 26, 2017, the Defendant: (a) carried out a frying counter in Jongno-gu Seoul Jongno-gu Seoul, taking advantage of the gaps in which the victim H knife the key to the object box and opened the victim’s object box, and 500,000 won in cash on the part of the victim’s possession, and 120,000 won in the new bank knife, one resident registration certificate, and one knifeet in the market value of KRW 120,000 in the market value.

C. On March 28, 2017, the Defendant: (a) up to 03:25, up to the said Grup, made soup, using the gap where the victim I am locked by placing the key of the object box in head; (b) opened the victim’s object box; and (c) opened the victim’s object box; and (d) one driver’s license on the part of the victim; (c) one resident registration certificate; (d) one corporate bank check card; (d) one company bank’s physical card; (e) one credit card; (e) one company bank’s bank security card; and (e) one company bank security card; and (e) one former bank security card.

As a result, the defendant was habitually sentenced to two or more penalties due to larceny and was habitually sentenced to larceny within three years after the execution of the sentence was completed.

【Fact of Grounds for Request for Attachment Orders】

The Defendant is a person who has committed a sexual crime against a person under the age of 19 in a month from the time when the execution of a sentence was completed due to quasi-indecent acts, such as the record of criminal records in the judgment, and is likely to recommit a sexual crime.

Summary of Evidence

1. Defendant's legal statement;

1. Each written statement of amnesty against H, E, and I;

1. Protocol of inspection;

1. Each report on occurrence of a crime, each report on internal investigation (the No. 3, 34 of the evidence list), and each investigation report (the No. 6, 10, 13 of the evidence list);

1. Each protocol of seizure and each list of seizure;

1. Details of image analysis;

1. A photograph of damaged articles, video at the theft site, suspect moving habits, photograph, appearance of the suspect, and criminal photograph;

1. USB;

1. Previous convictions indicated in the judgment: Criminal history records, references (A) and investigation reports (Evidence List Nos. 47);

1. Habituality of judgment: Recognition of theftproof walls in light of the records of each crime, the method of frequency of crimes, the frequency of crimes, and the fact that each crime has been repeated several times during the short period;

1. The risk of recidivism as indicated in the judgment: (a) the following circumstances that can be recognized by comprehensively taking account of the following evidence and the request for an attachment order of an electronic device: (i) the Defendant committed the instant sexual crime by force after having been sentenced to one year of imprisonment for a crime of quasi-indecent act, etc.; (b) the sexual crime committed by the Defendant is also committed by force by force on the part of a man who is in a state of non-opportability because the Defendant was self-influencies or on the water surface; and (iii) the Defendant was a crime similar to the instant sexual crime by force on the part of a man who is in a state of her ability to resist; (b) the risk of recidivism by force on the evaluation of the Korean sex offender risk level (KSORS); (c) the total point of 34 points at the 34 points at the risk of recidivism; and (d) the Defendant’s age, character and behavior, the environment, motive, method, etc. of the crime and the circumstances after the crime, etc.

Application of Statutes

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

Article 7(4) and (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 299 of the Criminal Act; Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 329 of the Criminal Act (including habitual larceny and inclusive thereof)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (Indecent Act by Indecent Act on the Protection of Children and Juveniles against Sexual Abuse)

1. Aggravation for concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act is more severe than the punishment provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes (Larceny) and the punishment provided for in the proviso of Article 42

1. The proviso to Article 21 (3) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the period imposed on a person who has failed to complete a program under Article 9-2 (1) 4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders)

1. An order for disclosure and notification;

The main sentence of Article 49(1) and the main sentence of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Article 5 subparag. 4, Article 9 (1) 3, and Article 9-2 (1) 4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders in Order to attach Electronic Monitoring Devices;

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 50 years; and

2. Application of the sentencing criteria;

(a) Basic crime: Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

[Determination of Punishment] thief under the Act on the Aggravated Punishment, etc. of Specific Crimes, thief (Habitual thief)

【Special Convicted Person】

[Scope of Recommendation] Three to Six years of imprisonment (Basic Area)

* Inasmuch as Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes falls under Article 5-5(6), the upper limit and lower limit of the scope of sentence

(b) Concurrent crimes: Crimes of violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

[Determination of Punishment] Sex Offenses, General Standards, Crimes of Indecent Act by Compulsion (subject to 13 years of age or older), Two Types (Indecent Act by indecent act, such as by indecent act, by force on residence, etc. by relative relation), Special Indecent Act

【Special Esponsor] Where the exercise of tangible power is significantly weak;

[Scope of Recommendation] Imprisonment from one year to two years (Mitigation)

* The lower limit of sentence and the upper limit shall be reduced to 2/3 each inasmuch as it constitutes a juvenile indecent act by compulsion. The standards for handling multiple crimes shall be three to seven years of imprisonment (one year of six years, which is the upper limit of the scope of basic crimes).

3. Determination of sentence;

The Defendant has already been punished several times due to habitual larceny crimes, and in particular, even though he had had been sentenced to punishment due to habitual larceny and quasi-indecent act by force before the month when the instant crime was committed, the Defendant committed each of the instant crimes during the period of repeated larceny. In particular, the Defendant committed the instant children.

In light of the fact that the crime of violation of the Act on the Protection of Juveniles against Sexual Abuse is not due to the nature of the crime in light of the victim E’s age, the content of the crime, etc., and the victim E appears to have caused considerable mental impulse and sexual humiliation, and that the victim E is punished against the defendant because the defendant has not yet reached an agreement with the victim E, etc., it is inevitable to punish the defendant.

However, all of the crimes of this case are recognized and reflected by the defendant, the value of the stolen goods is not significant, and most of them are returned to the victims, the defendant's age, character and conduct, family relations, the number of the crimes of this case, the circumstances after the crime, means and result, etc. are considered, and the punishment is determined as ordered by the order, taking into account various sentencing conditions as shown in the arguments of this case, such as the defendant's age, character and conduct, family relations, the number of crimes of this case, the circumstances after the crime

Registration of Personal Information

Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Quasi-Indecent Act by Compulsion) against the Defendant

Where a conviction becomes final and conclusive, the Defendant becomes 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 is obligated to submit personal information to the competent authority pursuant to Article 43 of the same Act (On the other hand, in this case, the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes and the Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, which caused the registration of personal information, are concurrently punished by imprisonment with prison labor for three years pursuant to the former part of Article 37 of the Criminal Act, and it is not recognized that all of the sentence is unreasonable to regard it as a sentence for a sex crime which causes the registration of personal information, Article 45(4) of

It is so decided as per Disposition for the above reasons.

Judges

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young

Note tin

1) On October 22, 2015, upon the commencement of a retrial on the instant case, the Defendant was sentenced to imprisonment with prison labor for habitual larceny in the Suwon District Court’s Ansan Branch.

2) The written indictment is written as ‘Sinnam District Court', but it seems to be written as ‘Seoul Western District Court'.