2016Mo1180 Indecent Act by compulsion

2016. Before maturity37 (Joint Attachment Orders)

Claimant

A

Orscop (prosecutions) and Kim Jong-sung (Trial)

Law Firm B (Attorney in charge)

January 20, 2017

A defendant shall be punished by imprisonment for not more than ten months.

However, the execution of the above punishment shall be suspended for two years from the date of the final judgment.

To be put on probation and order the defendant to attend sexual assault therapy for 40 hours.The request for the attachment order of this case is dismissed.

Criminal facts

The defendant and the person against whom the attachment order was requested (hereinafter referred to as the "defendant") came to know that the victim D (n, 21 years of age) and the victim E (n, 25 years of age) were met or known at a club.

1. On November 14, 2015, from around 04:00 to around 05:00 of the same day, the Defendant discovered the victim D who was walking at a “G” club located in Mapo-gu Seoul (BAR) around the first floor (BAR) above the “G” club, and found the victim D, with the victim’s own hand, wn the victim’s humf as he did so, wn the victim’s humf, with the victim’s humf, and humf, humd the victim’s humf with the defect that the victim attempted to escape from the Defendant, and then humd the victim’s humf, as the victim humfeded with his hand, and humd the victim’s humf, and humfed the victim’s humf, and repeated the victim’s behavior from the Defendant to several times, thereby forcing the Defendant to commit an indecent act.

2. On November 21, 2015, from around 03:00 to around 04:00 of the same day, the Defendant discovered and discovered the victim D with his/her friendship around the first floor DJ (DJ) in the above club and met with his/her son, and then he/she was sprinked with his/her son with his/her son, and then sprinked the victim with his/her son, and repeated the same behavior over several occasions. Accordingly, the Defendant forced the victim D to commit an indecent act.

3. From around 05:00 on November 21, 2015 to 07:00 on the same day, the Defendant continued to meet the victim E’s her own son with three times the victim’s her butt her butt with her hand, even though the victim told her not to be the Defendant. Accordingly, the Defendant forced the victim E to commit an indecent act.

Summary of Evidence

1. Partial statement of the defendant;

1. Some of the interrogation records of the accused by the prosecution;

1. Each police statement made to D and H;

1. E statements;

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The Defendant and the victims known before the instant case, and expressed friendly ties through physical contact. Due to the characteristics of a club, where physical contact is naturally permitted, such as facing each other, facing each other and dancing, etc., the Defendant merely provided a victim D with easy potteries and shouldering, and carried a person with respect to paragraph (2) of the holding, as to paragraph (3) of the same Article. As to paragraph (3) of the same Article, the Defendant took her part in the victim D’s shoulder, and took part in the personnel affairs on the part of the victim D’s shoulder, and took part in the personnel affairs on the part of paragraph (2) of the holding. As to the instant judgment, the Defendant took part twice remarkably in the mind that he would look back to the victim E while smoking with the victim E. Therefore, the Defendant cannot be said to be a indecent act, and the Defendant did not have any intent to force the victim by compulsion.

2. Determination

A. Relevant legal principles

An indecent act refers to an act that causes a sense of sexual humiliation or aversion to the general public and is contrary to good sexual morality, and thus infringing on the victim’s sexual freedom. Whether it constitutes an indecent act ought to be determined carefully by comprehensively taking into account the victim’s intent, gender, age, relationship before the actor and the victim, circumstances leading to the act, specific manner leading to the act, objective situation surrounding the act, sexual morality, etc. (see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002).

B. Determination as to paragraphs 1 and 2 of the judgment

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by this court, the Defendant is sufficiently admitted that the victim D expressed his intention of refusal as stated in the facts constituting the crime in the judgment, thereby committing indecent act by force, even if the victim D expressed his intention of refusal.

① The Defendant and the victim D are merely the persons first and three times through two months prior to the occurrence of the instant case.

② 피해자 D은 경찰에서 판시 제1항에 관하여 "자신이 화장실에 갔다가 바 앞을 지나쳐 디제이 부스에 가는 길에 바 앞에서 술을 마시고 있던 피고인이 자신을 보았다. 자신은 모른 척하고 빨리 지나가려고 하는데 피고인이 순간 한 손으로 자신의 허리를 낚아채서 자기 쪽으로 밀더니 자신의 뒤에서 두 손으로 백허그 하듯이 껴안았다. 자신이 계속 빠져나오려고 하자 한 손으로 자신의 목을 감싸서 못 빠져나가게 했다. 자신은 힘으로 빠져나온 후 디제이 부스 쪽으로 이동했고 20분 정도 디제이 부스 쪽에서 친구랑 놀고 있는데, 피고인이 자신의 앞에 와서 자신을 불렀다. 자신은 싫어서 친구들 뒤에 숨기도 했는데, 피고인은 계속 자신을 보며 손짓을 하더니 왼쪽 옆으로 다가와 어깨동무하듯이 자신의 목을 감쌌고, 자신은 계속 그 사이로 빠져나왔다. 자신은 하지 말라고 말하든가 온 몸으로 싫다고 표현하였다. 모르는 사람 뒤에 숨기도 하고, 피고인의 손에서 빠져나오려고 여러 번 밀치기도 하였다. 당시에 주위에 아는 사람이 많았고, 피고인도 한 다리 건너서 아는 사람이었기 때문에 경찰에 신고까지는 하지 못했다."(증거기록 44~46면)고 구체적으로 진술하였다.

피해자 D은 판시 제2항에 관하여 "자신이 디제이 부스 앞에서 친구와 놀고 있었는데, 피고인이 밖에 나갔다가 디제이 부스 앞으로 걸어오다가 자신을 보고 아는 척을 했고, 오른쪽 옆으로 와서 한 손으로 자신의 허리를 감쌌다. 자신은 빠져나오고 피고인은 또 허리를 감싸는 상황을 여러 차례 반복했다. 허리를 2~3회 감싸기도 했고, 목도 2~3회 감쌌다. 자신은 피고인이 허리와 목을 감싸면 빠져나오기를 반복하고 '왜 그래, 하지마.'라고 말하며 싫은 것도 확실히 표현했다."고 구체적으로 진술하였다(증거기록 47, 48면).

③ Even if physical contact occurs frequently among people due to the nature of a club, and relatively freely permitted, one party explicitly expresses his/her intention of refusal, but it seems that the other party continues to boom and breath by causing sexual humiliation or aversion to the general public, and thus infringing one’s sexual freedom. The judgment as to Article 3 of the Decision is based on the foregoing.

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, the Defendant may sufficiently recognize that the victim E expressed his intent to refuse, as stated in the facts constituting the crime in the judgment, but the victim’s her her her her her her her her her bm

(1) The Defendant and the victim E were only three years prior to the occurrence of the instant case, but they were in the Republic of Korea without personal exchange.

② A victim E stated that “A while having knowledge of ice, the Defendant continued to have her butt her but not her but her only three times, he/she reported her to the president of the club. He/she reported her to the president of the club. Around the same time, the victim E stated that “I am bad, and her her her son was fright, and her her son.” (Evidence No. 14 pages).

The defendant also stated in the police that "E was her her son and her son outside the club before her son and her son and son outside the club." Therefore, Ha, the president of the club, stated that "h was her son and her son and son her son her son her son." (Evidence No. 32 pages. 4)" in relation to paragraph 3 of the decision at the police, the defendant stated that "the defendant was her son her son and reported another her son at his her son, and her son her son was her son's son and her son her son who is the defendant's own her own son and her son who is the defendant's own her own son and her son who is the defendant's own her own son." On the other day, her son was her son and her son who is the defendant's her son."

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

§ 298 of the Criminal Code

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes with punishment prescribed in paragraph (3) of the same Article, which is the largest judgment of the principal)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Probation;

Article 62-2 of the Criminal Act

1. Order to attend lectures;

The main sentence of 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;

Article 47(1) and Article 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 against Sexual Abuse (the disclosure and notification order of registered information has no record of being punished for sexual crimes. In this case, it seems that the defendant can expect the effect of recidivism even by registering personal information of the defendant and attending sexual assault treatment courses. In light of all the circumstances, such as the defendant's age, family environment, etc., the disclosure and notification order may not disclose or notify personal information of the defendant because the disclosure and notification order appears to be relatively less than the disadvantages and anticipated side effects that the defendant suffers, etc.

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

(a) Basic crimes and concurrent crimes: Each indecent act by compulsion;

[Determination of Punishment] The crime of indecent act by indecent act by indecent act by indecent act by indecent act by indecent act on a sex offense

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Field, six months to two years

(b) Results according to the standards for handling multiple crimes: Six months to three years.

3. Determination of sentence: Ten months of imprisonment and two years of suspended sentence;

Although the defendant refused to meet the victim's physical contact at a club, it is not good for the victims to repeatedly commit the crime, and the victims seem to feel sexually. The defendant's disadvantage is that the victims might feel sexually.

However, the fact that there is no criminal record that the defendant commits the same crime or has been sentenced to a punishment exceeding a fine, and that the degree of indecent act is relatively heavy is favorable to the defendant. Other factors such as the defendant's age, character, conduct, family relation, environment, motive, means and consequence of the crime, and circumstances before and after the crime, etc., the punishment shall be determined as ordered by taking into account the various factors of sentencing specified in the arguments

Where a conviction becomes final and conclusive on each crime of a sex offense subject to registration of personal information, the defendant is a person subject to registration of personal information under Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus is obligated to submit personal information to the competent agency pursuant to Article 43 of the same

Judgment on the request for attachment order

1. The abstract of grounds for requesting an attachment order;

Although the Defendant did not appear to have an attitude against the victims of two sexual assault by force three times, the Defendant did not seem to have committed a crime against the victims while denying the commission of the crime. As a result of the evaluation of the PC-R, there are characteristics such as the lack of meeting or criminal liability, tendency to stimulate or easily obstruct the occurrence of the crime, sexual life, etc. Accordingly, the Defendant has the habit of sexual assault crime, and the risk of recidivism is high.

2. Determination

Since a suspended sentence is imposed on each of the crimes of this case, which are the specific crime cases against the defendant, the request for the attachment order of this case is dismissed pursuant to Article 9 (4) 4 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders.

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

The presiding judge shall be changed.

Judges Kim Gin-han

Judges Park Jong-ok