2016 Highest 3389, 3809 (Joint) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

(A) sexual purpose, public place, etc. (a recognized crime)

Named building bed), theft

A person shall be appointed.

Jina decoration, abnormal (prosecutions), and Sposil (public trial)

Attorney B (Korean National Assembly)

November 4, 2016

A defendant shall be punished by imprisonment with prison labor for up to seven months.

Facts of crime

【Criminal Power】

On November 25, 2015, the Defendant was sentenced to one year and two months of imprisonment for fraud by the Incheon District Court on November 25, 2015 and completed the execution of the sentence in the Gwangju Prison on May 17, 2016.

[Criminal Facts]

[2016 Highest 3389]

On June 6, 2016: around 18, the Defendant, at around 2016: Around 18, 2016, followed a structure that he/she manages against the will of the toilet manager of the said hospital by cutting off the door by cutting off the chill and cutting off the side partitions. In mind, the Defendant 1st floor of the 00 hospital located in the north-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu Gyeong-gu.

2016 Highest 3809

1. On June 9, 2016: (a) around 00, the Defendant: (b) committed theft with 18,000 won in cash, which is the victim’s possession in the above restaurant room; and (c) with 200,000 won in the market price of Gwangju Bank C’s physical card; and (b) took away from 00,000 won in the above restaurant.

2. On June 12, 2016: around 13, the Defendant released 110,000 won in cash from the cash automatic machines managed by the manager of the cash automatic machines for the victim’s name-free Gwangju Bank, using the physical card of the Gwangju Bank, which was the owner of C, as described in paragraph (1), at around 00 points in Jung-gu, Gwangju, North-gu, Gwangju, and then stolen them.

Summary of Evidence

[2016 Highest 3389]

1. Defendant's legal statement;

1. A 00 statement;

1. On-site photographs ( inside toilets) and investigation reports (to hear statements from victims);

[2016 Highest 3809]

1. Defendant's legal statement;

1. C's statement of damage;

1. An investigation report (related to the use of a check, which is a damaged product), account description inquiry, and field photograph;

【Criminal Power】

1. Previous convictions in judgment: Criminal records, etc. of the case (No. 2016 Highest 3389) and investigation reports (the transfer of suspects to repeated crimes and reporting on confirmation);

Application of Statutes

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

Article 319(1) of the Criminal Act (the point of entering a structure), Article 329(1) of the Criminal Act (the point of larceny) and Article 329 of the Criminal Act (the point of larceny), each of the imprisonment vessels for repeated crimes;

Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

1. The grounds for sentencing under the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act;

2. Scope of recommending the sentencing criteria: Since each larceny for which the sentencing criteria are set and each offense of intrusion upon residence for which the sentencing criteria are not set are concurrent crimes under the former part of Article 37 of the Criminal Act, only the lower limit of the sentencing range for the offense against which the sentencing criteria are set shall apply as follows:

(a) Each category of larceny [Scope of Recommendation] The basic area of larceny (general larceny) for general property in Type 2;

【No Special Convicted Person】

(b) Application of standards for handling multiple crimes: Six months to two years (in accordance with the standards for handling two multiple crimes, the upper limit of the second crime shall be added to the upper limit of the first crime in accordance with the standards for handling two multiple crimes);

3. Determination of sentence;

The punishment as ordered shall be determined in consideration of the following circumstances, such as the age, character and conduct, environment, family relationship, motive and consequence of the crime, and circumstances of sentencing as shown in the records.

The circumstances favorable to ○: The Defendant is led to confession and reflect. The amount of damage caused by the instant larceny is relatively small, and some of the damage was returned to the victim C. On August 16, 2016, the Defendant voluntarily present at an investigative agency on the charge of the instant larceny and voluntarily surrenders himself/herself to the commission of the instant larceny.

○ An unfavorable circumstances: The Defendant has a record of criminal punishment for special larceny and larceny several times, and in particular, criminal punishment for the same criminal records as the criminal records in the judgment, and committing each of the crimes in this case again during the period of repeated crime; thus, the nature of the crime is bad. The Defendant did not recover from damage to the victims.

Parts of innocence

1. Summary of the primary facts charged

On June 6, 2016: around 18, the Defendant came in front of the 1st floor toilet of 00 hospitals located in the Gyeong-gu, Chungcheongnam-gu, Gwangju, Gwangju, and then came in front of the 18th floor toilet of 00, women's melting the appearance into the female toilet (hereinafter "the toilet of this case") in order to steals the appearance, and was hidden in the b0:55 on the same day when the 20th day was hidden in the burine column, and the Defendant got out of the victim's U.S. (n., 19 years of age) and then stolen the burine of the victim.

Accordingly, the defendant invadeds on public toilets to satisfy sexual desire.

2. Determination

A. Article 12 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that an act of intrusion on public toilets, etc. under subparagraphs 1 through 5 of Article 2 of the Public Toilets, etc. Act shall be punished for the purpose of meeting his/her sexual desire. Thus, if a toilet is not a toilet under subparagraphs 1 through 5 of Article 2 of the Public Toilets, etc. Act, it shall not be punished pursuant to Article 12 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, even if a person intrudes on toilets used by many people for the purpose of meeting his/her sexual desire.

Meanwhile, according to Article 2 of the Public Toilets, etc. Act, "public toilets, etc." means public toilets (No. 1, toilets installed by the State, local governments, corporations, or individuals for the use of the public), ② public toilets (No. 2, toilets installed in public institutions' facilities, or toilets designated by the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu pursuant to Article 9(2)), ③ mobile toilets (No. 3, toilets installed for the temporary use of large number of people's events, etc.), ④ portable toilets (No. 4, small toilets installed in an area where it is difficult to install public toilets and public toilets), ⑤ Pay toilets (No. 5, toilets installed in toilets, and toilets installed and managed by the manager of public toilets). In addition, the Act provides for ① through 5, public toilets, etc. for the installation and management of public toilets in order to promote convenience and improve the level of sanitation of the public, and specifically provides for the installation and management standards of public toilets (no. 7).

B. However, the evidence submitted by the prosecutor alone is insufficient to recognize that the toilet of this case constitutes "public toilets, etc." as stipulated in Article 2 of the Public Toilets, etc. Act, and there is no other evidence to acknowledge it.

Rather, according to the fact-finding inquiry report on the above public toilets, etc., the toilets in this case do not seem to fall under the above ① or ⑤ public toilets, etc. managed by the relevant administrative agency, the public toilets in this case.

Even if the general public was able to freely use the toilet of this case, in light of the legal principles of the principle of no punishment without law, such circumstance alone does not constitute “public toilets, etc.” as mentioned above. The practical necessity of punishment, etc. should be resolved by legislation, and it does not constitute a response by expanding or analogical interpretation of penal laws and regulations (see Supreme Court Decision 2016Do5590, Jun. 23, 2016).

C. Therefore, since the primary facts charged in this case constitute a case where there is no proof of a crime, each of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of the crime of intrusion on a structure which is the ancillary facts charged,

Judges Adult beneficiary -