(영문) 의정부지방법원 2020.5.8. 선고 2019노3245 판결

Of the judgment of the court below, the part of the judgment on the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Ameras, Use Screening of Cameras, etc.) concerning attached 18 times

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

The defendant shall be ordered to complete the sexual assault treatment program for 40 hours.

The defendant shall be subject to employment restrictions for one year in each year with children and juveniles-related institutions, etc. and welfare facilities for disabled persons.

Seized Aphone X 1 (No. 1) shall be confiscated.

In order to order the provisional payment of an amount equivalent to the above fine.

Reasons

1. Progression of litigation and scope of adjudication of this court;

A. The lower court found the Defendant guilty of all the charges of this case and sentenced the Defendant to a fine of KRW 7,00,000, order to complete sexual assault treatment programs for 40 hours, and two-year employment restriction order and confiscation of child and juvenile-related institutions.

B. The prosecutor appealed against the lower judgment on the ground of unfair sentencing, and the lower judgment prior to remanding the case was reversed ex officio on the ground that it did not have judged whether the Defendant imposed an employment restriction order on welfare facilities for the disabled pursuant to Articles 2 and 59-3(1) and (2) of the Addenda of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Nov. 1, 2018). After arresting flagrant offenders, the seizure of voluntarily produced items under Article 218 of the Criminal Procedure Act is not allowed when arresting flagrant offenders, and even if such permission is granted, the voluntary submitted items should not be guaranteed, and thus, the admissibility of evidence of the seized cell phone devices and stored information stored in cellular phone on the ground that there is no evidence to reinforce this in addition to the Defendant’s confession, the lower

C. A prosecutor filed an appeal against the judgment of the party before remanding the case on the grounds of misapprehending the legal principles, and the Supreme Court, among the instant facts charged, rendered a not guilty verdict on the charge of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes against the List of Crimes No. 18 times per annum in the judgment of the party prior to remanding the case, even though there is considerable room to deem that there was no supporting evidence to support the Defendant’s confession. However, the Prosecutor’s appeal is dismissed on the grounds that the conclusion of the judgment prior to remanding the remainder of the facts charged in the instant case can be accepted, and the part of the judgment prior to remanding the case was reversed and remanded to this court.

D. Therefore, the scope of this court’s judgment is limited to the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Kameras, etc.) with regard to 18 times a year in the judgment of the court prior to remanding according to the purport of the above judgment of remanding.

2. Summary of grounds for appeal;

The sentence of the court below (the fine of KRW 7,00,00, the order to complete a sexual assault treatment program, the employment restriction order, and the confiscation) is too unfluent and unfair.

3. Ex officio determination

Article 59-3(1) of the Act on Welfare of Persons with Disabilities (amended by Act No. 15904, Dec. 11, 2018; effective June 12, 2019) provides that where the court declares a sentence of imprisonment or medical treatment and custody for sex offense, it shall impose an order to prevent the operation of welfare facilities for the disabled or the employment or actual labor of welfare facilities for a certain period from being suspended (where a fine is sentenced, the date on which the sentence becomes final) or exempted from the execution of the sentence or medical treatment and custody by judgment (hereinafter referred to as “employment restriction order”) at the same time as the judgment of the sex offense case, and the proviso provides that Article 59-3(1) of the Addenda of the Act on Welfare of Persons with Disabilities (Act No. 15904, Dec. 11, 2018) provides that Article 59-3 of the aforementioned Act shall also apply to a person who has not been subject to the above final judgment prior to the enforcement of the final judgment.

The instant crime is a crime falling under Article 14(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 15977, Dec. 18, 2018) and constitutes a sex offense to which Article 59-3(1)5 of the Act on Welfare of Persons with Disabilities applies pursuant to Article 2(1)5 of the same Act. Therefore, the lower court should have deliberated and determined whether the Defendant was sentenced or exempted from the employment restriction order for persons with disabilities pursuant to Article 59-3(1) of the Act on Welfare of Persons with Disabilities. In so doing, the lower court did not have deliberated

4. Conclusion

Therefore, the judgment of the court below is reversed under Article 364 (2) of the Criminal Procedure Act without examining the prosecutor's assertion of unfair sentencing, and it is again decided as follows. The part of the court below's judgment is reversed under Article 364 (2) of the Criminal Procedure Act and it is again decided as follows.

[Judgment of the court below which re-written on No. 18 of the annexed Table 18]

Criminal History Office

On March 26, 2018, around 08:14, the Defendant taken the famer of a female victim with no name using a cell phone (Evidence No. 1) in Yongsan-gu Seoul, Yongsan-gu, Seoul.

As a result, the defendant taken the body of another person, who could cause sexual humiliation or shame, using a camera or other similar mechanism, against his will.

Summary of Evidence

1. The defendant's oral statement in court;

1. Seizure records;

1. Existing existence of the seized opphone X 1 (No. 1);

Application of Statutes

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

Article 14(1) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 15977, Dec. 18, 2018); Selection of fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order to complete programs;

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

1. An employment restriction order;

The main sentence of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 2 of the Addenda to Welfare of Persons with Disabilities Act (Act No. 15904, Dec. 11, 2018); the main sentence of Article 59-3(1) of the Act on Welfare

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

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 (in full view of the Defendant’s age, occupation, risk of recidivism, type and motive of the instant crime, type of the crime, process of the crime, disclosure and notification order, the degree of disadvantage and anticipated side effects of the Defendant’s entry due to the order to disclose or notify the information, the prevention of the sex offense subject to registration that may be achieved therefrom, and the effect of protecting the victims

Registration and submission of personal information

When a conviction on a crime subject to registration becomes final and conclusive, the defendant is a person subject to registration of personal information prescribed in 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 head of a related agency pursuant to Article 43 of

Reasons for sentencing

The crime of this case is an unfavorable circumstance where the defendant took a photograph of the body of the victim by using a mobile phone, and the nature of the crime is not good, and the fact that the defendant did not receive a letter from the victim is disadvantageous.

However, the fact that the defendant is recognized as committing the crime of this case and is against the law, and that there is no criminal power, etc. are favorable circumstances.

The sentence shall be determined as ordered in consideration of the circumstances favorable to the defendant, taking into account the following factors: the defendant's age, character and conduct, environment, circumstances surrounding the crime, circumstances after the crime, etc., and all the sentencing conditions shown in the records and arguments.