(영문) 부산지방법원 2013.10.18.선고 2013고합424 판결

A person who has requested an attachment order shall be ordered to attach an electronic tracking device for ten years, and matters to be observed in the attached Form shall be imposed during the period of attachment.

Reasons

Criminal facts and the facts constituting the attachment order

【Criminal Power】

On June 4, 2008, the defendant and the person subject to a request to attach an attachment order (hereinafter referred to as the "defendant") sentenced the Busan District Court to two years and six months of imprisonment for the punishment of sexual crimes and the crimes of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims (Rape in Relatives) and completed the execution of the above punishment.

【Criminal Facts】

On February 14, 2013, the Defendant, around 14:00, 14:00 on the first floor of the Defendant’s house of the 1st floor of the Geumcheon-gu, Busan, was sexual intercourse and raped on a single occasion, by giving the victim’s resistance to the victim D (the age of 24) who was suffering from intellectual disability (the age of 24).

【Fact of Grounds for Attachment】

The Defendant was sentenced to imprisonment with prison labor for a sexual crime, as stated in the above criminal records and criminal facts, and committed a sexual crime within ten years after the execution of the sentence is completed, and committed a sexual crime against a person with mental disability, and also is likely to recommit a sexual crime.

Summary of Evidence

【Criminal Facts in the Market】

1. Defendant's legal statement;

1. Each prosecutor's statement concerning E and F;

1. Statement recording recorded by the police against D;

1. Copy of a disability medical certificate (Evidence No. 151), disability grade decision, and family relation certificate (Evidence No. 13 pages);

【Criminal Power at the Time of Sales】

1. An inquiry report, such as a criminal history;

1. Current status of confinement of individuals;

【Risk of Reoffending at the Time of Sales】

In full view of the following circumstances, the Defendant committed the instant crime against the victim, who was sentenced to imprisonment for two years and six months, and committed the instant crime against the same victim during the period of repeated crime, ② the evaluation score applied to the Korean sex offender risk assessment degree (KSSAS) is 16 points, and the evaluation score applied to the Defendant is 16 points, 16 points, 16 points, "the intermediate level", and 16 points, and the evaluation score applied to the application of the PC-RS, and 16 points, as a result of the application of the sexual offender risk assessment level (PCL-R), and 16 points, it is found that the sexual crime risk assessment point was investigated as distorted in relation to rape as a result of the application of the application of the PC-R.

Application of Statutes

1. Article applicable to criminal facts;

Article 5(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (wholly amended by Act No. 11556, Dec. 18, 2012; hereinafter the same shall apply); Article 297 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012; hereinafter the same shall apply); Article 6(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes; Article 297 of the former Criminal Act

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishments prescribed by the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with Severe Punishment)

1. Selection of punishment;

Optional of limited imprisonment

1. Aggravation for repeated crimes;

Article 35(1) and proviso of Article 42 of the Criminal Act

1. Order to complete programs;

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

1. Exemption from an order for disclosure and notification;

In light of 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 against Sexual Abuse (where the disclosure and notification of information about the defendant in connection with the defendant in connection with the defendant is made, disclosure and notification to the general public about the general public, including disclosure and notification information about the defendant who peruses the disclosed and notification information, and the name of the sex crime, etc., the victim is likely to be exposed to the general public. In light of the circumstances of the crime of this case, etc., it is difficult to see that there is a risk of recommitting sexual crimes against many and unspecified persons. Considering the profits expected by disclosure and notification order of the defendant, the effects of prevention, disadvantages and side effects of disclosure and notification

1. An attachment order;

Article 5(1)1 and 5, and Article 9(1)1 of the Act on Probation, Electronic Monitoring, etc. of Specific Criminal Offenders

1. Imposition of obligations;

Reasons for sentencing under Article 9-2 (1) 1, 3, and 5 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders

[Scope of Punishment] Imprisonment of 7 years to 50 years

【Scope of Recommendation】

○ Determination: Sex crimes, general standards, sex offenses against persons with disabilities (at least 13 years of age), rapes (type 4), ○ Special Convicts

- Reduction Elements: Non-Mitigation of Punishment

-Aggravationd factors: Cumulative repeated crimes not constituting a special lecture (Cumulative offense)

○ General Convicts

-Aggravationd factors: Use of personal trust relationship

○ Scope of Recommendations: Imprisonment of six to nine years (basic areas)

○ Scope of recommendations modified according to the lower limit of applicable sentences under the law: Imprisonment for 7 years to 9 years;

[Determination of Sentence] 8 years of imprisonment

Although the Defendant was sentenced to punishment due to the quasi-rape crime against the instant victim, who is a victim of intellectual disability 1st degree, the Defendant committed rape during the period of repeated crime. Although the Defendant was found to have been sentenced to punishment due to the crime of quasi-rape with the instant victim, the Defendant, as the omission, committed an anti-human act, which is subject to the resolution of sexual desire by taking advantage of the victim’s disability condition, rather than by taking advantage of the victim’s disability condition, the crime is very serious in light of the relationship with the victim, the victim’s intelligence, the repetition of the crime, and the details of the crime. The victim appears to have very significant mental and physical shock due to the instant crime, and the victim’s psychological and physical shock appears to have been significantly high, and such common wife is unable to be recovered through a lifelong life.

However, under favorable circumstances such as the fact that the victim and his/her father are prior to the defendant, the confession of the crime of this case and the fact that he/she is against the defendant, etc., the punishment shall be determined as ordered in consideration of various sentencing conditions shown in the arguments of this case, such as the defendant's age, character and conduct, family relationship.

In addition, it is ordered to complete the sexual assault treatment program for 120 hours in order to reflect and improve the defendant's sexual assault tendency.

Registration of Personal Information

Where a conviction becomes final and conclusive on the crime of this case, which is a sex offense subject to registration under the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the defendant shall be a person subject to registration of personal information under Article 42 of the aforesaid Act and shall be obligated to submit personal information to the competent agency

Judges

Chief Judge Park Jong-chul

Judge Lee Young-young

Judges Cho Jong-sung

Note tin

1) A concurrently held company was prosecuted by applying Article 3 of the Act on Special Cases Concerning the Punishment of Specific violent Crimes, but the crime of this case is stipulated in Article 2 of the same Act.

Article 3 of the same Act shall not apply because it does not fall under specific violent crimes.