(영문) 서울중앙지방법원 2017.2.17. 선고 2016고합1141 판결

The seized ELPex 1 (No. 4417 of pressure of Seoul Central District Prosecutors' Office No. 4417 of 2016) and one cellphone 6S mobile phone (No. 2257 of pressure of Seoul Central District Prosecutors' Office No. 2016) shall be confiscated, respectively.

The probation order shall be issued to the accused and the accused shall be given an order to take lectures of sexual assault treatment for 80 hours.

Reasons

Criminal History Office

[2016 Highest 1141]

1. A crime committed on May 14, 2016 against the victim's name or incompetence;

The defendant is an employee of the Gangnam-gu Seoul Gangnam-gu's ‘F' club, and the victim of his name in bad faith is a person who has been a guest in the ‘F' club.

(A) quasi-rape,

On May 14, 2016, at around 10:00, the Defendant drinked alcoholic beverages with the victim at a “F” club located in Gangnam-gu Seoul Metropolitan Government E, and around 11:57 on the same day, the Defendant: (a) carried the victim who frighted in the furine room located in the furine room located in Gangdong-gu Seoul Metropolitan City, Gangdong-gu, and furged off the clothes of the victim who lost awareness, laid off the furg, flaged the victim’s sound part, puts tobacco into the victim’s sound part, put the Defendant’s sexual organ into the victim’s negative part.

Accordingly, the defendant has sexual intercourse with the victim by taking advantage of the victim's mental or impossible condition.

(b) Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

On May 14, 2016, at least 12:55, the Defendant taken 21 times in total (13 times in video, 8 times in photographs) of the victim’s indecent act scene and sexual intercourse with the victim’s sexual intercourse scene, and posted it on a G organization’s toilet room, such as the following: (a) the Defendant taken 27 seconds of the body 27 seconds in which the victim’s sound part was set up by using the camera function of the camera branch of the smartphone owned by the Defendant; and (b) taken the upper part of the body 27 seconds in hand; and (c) up to 16:01 on the same day from that time, the Defendant posted the front part of the victim’s sound part by using the camera function of the camera branch of the Defendant’s smartphone set forth in [Attachment] No. 2, No. 7 through 10, No. 15, and No. 18.

Accordingly, the defendant taken 21 times in total against his will the body of the victim who could cause sexual humiliation or shame by using a mechanical device with a camera function, and distributed the taken 7 times in total.

2. A crime committed against the victim H (n, 22 years of age) on May 21, 2016;

The defendant is a friendly relationship between the victim H and the victim who had been aware of three years ago.

피고인은 2016. 5. 21. 05:11경 서울 강남구 I에 있는 'J' 식당 안에서 피해자와 함께 식사를 하던 중 피고인 소유의 엘지 지플렉스 스마트폰의 카메라 기능을 이용하여 피해자의 가슴 부분을 촬영한 것을 비롯하여 그때부터 같은 날 07:03경까지 별지 범죄일람표 순번 제22번 내지 제24번 기재와 같이 피해자의 가슴, 음부, 피고인의 성기를 손에 쥔 피해자의 모습을 총 3회에 걸쳐 촬영하고 별지 범죄일람표 순번 제22번, 제24번 기재와 같이 G 단체 대화방에 게시하였다.

Accordingly, the defendant taken 3 times in total against his will the body of the victim who could cause sexual humiliation or shame by using a mechanical device with a camera function, and distributed the photographs twice.

3. Crimes against K (n, 27 years of age) committed on June 3, 2016.

On June 3, 2016, at around 10:44, the Defendant entered the first floor of the Seocho-gu Seoul Metropolitan City L Building in order to take a image of female use of a smartphone, and intruded the structure against the Defendant’s will of the said female toilet manager, and then, in order to take the image of the victim into the front screen by using the video photographing function of the said smartphone operator, the Defendant did not turn off the said smartphone, but did not turn on the victim.

Accordingly, the Defendant attempted to take the body of the victim, which could cause sexual humiliation or shames, by intrusion upon another person's building, and using a mechanical device with a camera function, to take the victim's body against his will.

"2016 Gohap1265"

1. Intrusion a structure;

On April 10, 2016, around 05:50 on April 10, 2016, the Defendant discovered that women were entering the above female toilet in Gangnam-gu Seoul Metropolitan Government M, and subsequently entered it into a mobile phone to take the image of women’s tolerances into the mobile phone.

Accordingly, the defendant intruded on a structure against the will of the manager of the above coffee specialty.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (carmers and photographs);

A. At around 2016, April 10, 10, 2016, 05:50, the Defendant collected a opphone6S cell device possessed by the Defendant from a female toilet located in the Gangnam-gu Seoul Metropolitan Government, in a space below the partitions where the inside change has been installed, and taken approximately 16 seconds of 1 minute of 1st and 16 seconds of the body of the victim (e.g., 23 years of age) using a video recording function.

B. The Defendant, at the date, at the time, and at the place under the preceding paragraph, 10 minutes of 6 minutes of 33 minutes of dynamics, she continuously taken the image that the victim P(23 years of age) was able to sit, and the she was able to sit, and the she was able to sit and melt.

C. The Defendant, at the time, at the time and place of paragraph (a), taken approximately 24 seconds of screen pictures, such as paragraph (a), in which young young women suffering from Cheongbaba and white typosis (consuling typinus) have taken the form of raising Cheongbaba in the form of a video recording, immediately after having reported the cliba from the transformation.

Accordingly, the defendant taken the body parts that could cause a sense of sexual shame to the victims three times in total against their will.

Summary of Evidence

"2016 Gohap1141"

1. Defendant's legal statement;

1. Each police statement made to K and H;

1. A written statement of Qua;

1. Records of seizure and the list of seizure;

1. Investigation report ( July 30, 30), investigative report (Attachment to video and photo files on July 30, 200), investigation report (Attachment to video and video files) (Attachment to video and video images related to a suspect's crime);

1. Photographs taken by the suspect AG conversation (fix of photographs), the suspect AKameras;

"2016 Gohap1265"

1. Defendant's legal statement;

1. Statement of each police officer about 0 and P;

1. Records of seizure and the list of seizure;

1. Investigation report (related to voluntary submission of a suspect A mobile phone and securing of criminal motion images) and investigation report (Analysis of video files);

1. Other closure photographs;

Application of Statutes

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

Articles 299 and 297 of the Criminal Act; Article 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of taking pictures using camera, etc., choice of imprisonment), Article 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of distributing photographs), Articles 15 and 14(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of choosing imprisonment), Articles 15 and 15 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a point of attempted taking pictures using camera, etc., choice of imprisonment), Article 319(1)

1. Aggravation for concurrent crimes;

The former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (a person who commits concurrent crimes with the punishment heavier than that prescribed by the crime of quasi-rape)

1. Suspension of execution;

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

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Orders for probation and education;

The main sentence of Article 16 (2) and (4) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

1. Article 47 (1) and Article 49 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an order to disclose or a notification order, 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 (public disclosure and notification of

Order needs to be prudent in that it has a significant impact on the defendant. In this case, considering the defendant's age, family relationship, disclosure or notification order's disadvantage and anticipated side effects that the defendant will suffer, and the preventive effects of sexual crime that can achieve as a result, it is deemed that there are special circumstances that the defendant should not disclose personal information in light of the defendant's age, family relation, disclosure or notification order's age, expected side effects, etc.

Reasons for sentencing

1. The scope of applicable sentences by law: Imprisonment for not less than three years nor more than 45 years;

2. Scope of recommendations according to the sentencing criteria;

(a) Crimes of quasi-rape;

1. General Criteria: (a) Type 1 (General Rape) of the Sexual Offense Act (subject to 13 years of age or older)

[Special Sentencing] Disapproval of Punishment (Discretionary Elements)

[Scope of Recommendation] One year and six months to three years (Mitigations)

B. As the sentencing criteria are not set for the remaining crimes, only the lower limit of the sentencing criteria should be taken into account for the above crimes of quasi-rape.

3. Determination of sentence;

The Defendant, by taking advantage of the fact that the victim was in a state of difficulty to resist due to breath, taken and distributed the process of rape, taken by the victim H’s chest, fluor, etc., taken and distributed by photographing the victim’s chest and fluor, taken by the victim’s intrusion into female toilets, taken the face of the victim’s glusing of clothes, and taken the face of the victim’s glus

However, considering the circumstances favorable to the defendant, such as the fact that there has been no criminal records of the defendant who has been sentenced to a fine exceeding the fine, the victims whose identity has been confirmed and the victims who have not been sentenced to the punishment of the defendant, and the fact that they have not been sentenced to the punishment of the defendant, etc., a comprehensive consideration of the age, character and conduct, family relationship, motive and means of the crime, circumstances after the crime, etc., as stated in the records and arguments

Registration of Personal Information

Where a conviction becomes final and conclusive on each of the remaining criminal facts except each crime of intrusion upon each building, the defendant is a person subject to the registration of personal information under Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus, he/she is obligated to submit personal information to the competent agency pursuant to