(영문) 서울중앙지방법원 2018.8.17. 선고 2018고합343 판결

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive, and the defendant shall be ordered to attend the sexual assault treatment lecture for 40 hours.

The defendant shall be ordered to place an employment restriction on children and juveniles-related institutions, etc. for two years.

Reasons

Criminal facts

On July 16, 2017, the Defendant came to know of the victim D(n, 23 years of age) and E. Around July 21, 2017, G located in Seongbuk-gu Seoul, with the victim, went to a hotel located in Seongbuk-gu Seoul, and went to a hotel located in Seongbuk-gu Seoul. At around 21:50 on the same day, the Defendant: (a) had the victim resist and filed a report on the crym and panty of the victim who was under the influence of alcohol in I hotel 605 room around 21:50 on the same day; (b) had the victim resist and resisted the victim’s arms and shoulder with the body above the body of the victim; and (c) the Defendant inserted the victim’s sexual organ into the part of the victim. By doing so, the Defendant had sexual intercourse with the victim once.

Summary of Evidence

1. Defendant's legal statement;

1. The police statement of the victim;

1. Details of 112 reported cases;

1. Each gene appraisal report;

1. Each investigation report (the sequence 6, 12 of the list of evidence);

1. CCTV output screen;

1. Photographs;

Application of Statutes

1. Article applicable to criminal facts;

Article 297 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

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;

In full view 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 (i.e., it is difficult to readily conclude that the defendant has a risk of recidivism due to the absence of identical criminal records; and (ii) personal information registration and lecture attendance order, etc. against the defendant may have an effect on the prevention of recidivism even to a certain extent. In addition, considering all the circumstances such as the adverse effects and anticipated side effects that the defendant may sustain due to the disclosure order and notification order, and the age, occupation, home environment, social relationship between the defendant and the defendant, and the motive, means, and results of the instant crime, there are special circumstances where the

1. Reasons for sentencing under Article 56 (1) and (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse who are subject to employment restriction; 1. Scope of applicable sentences under law: One year and six months to fifteen years;

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Type 1 (General Rape) of rape (subject to 13 years of age or older)

[Special Mitigation] Ad hoc Inspector

[Recommendation and Scope of Recommendations] Reduction Area, one year to six years

3. The crime of this case committed by the sentence decision is not likely to be a crime of sexual intercourse with the Defendant, even though the Defendant had expressed clearly his/her intention of refusal after taking the victim who was taken to a hotel. The victim appears to have suffered a considerable physical and mental pain due to the instant crime. Such circumstance is disadvantageous to the Defendant.

However, there is no record of criminal punishment against the defendant for a punishment exceeding a fine or for a crime of the same kind. The defendant has committed his/her crime late later and reflects it, and the victim does not want the punishment of the defendant by mutual consent with the victim. Such circumstances are considered as favorable to the defendant.

In addition, the punishment as ordered shall be determined by comprehensively taking into account the various circumstances that serve as the conditions for sentencing, such as the age, character and conduct, environment, motive, means and method of committing the crime, and the scope of recommended punishment according to the sentencing guidelines.

Registration of Personal Information

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is a person subject to registration of personal information pursuant to 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 competent agency pursuant to Article 43

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