Defendant and person subject to medical treatment and custody, person subject to request for attachment order, and person subject to medical treatment order;

Defendant and person subject to medical treatment and custody, person subject to request for attachment order, and person subject to medical treatment order;

Kim Jong-Un (Court of Prosecution) and Park Jae-in (Court of Public Trial)

Attorney Kim Jong-soo (Korean)

Busan District Court Decision 2013Da127, 2013Ma6 (Consolidated), 2013Ma4 (Consolidated), 2013Mo2 (Consolidated), 2013Mo2 (Consolidated) Decided September 13, 2013

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six years.

A candidate for medical treatment and custody shall be punished by medical treatment and custody.

To the person subject to the request for attachment order, the attachment of an electronic tracking device shall be ordered for 20 years.

Matters to be observed as stated in the attached Form shall be imposed on the person requested to attach an attachment order.

The medical treatment order recipient shall be ordered to perform pharmacologic treatment for sexual impulses for five years.

1. A summary of the grounds for appeal (the defendant and the applicant for medical treatment and custody, the person subject to a request for attachment order, and the person subject to medical treatment order (hereinafter referred to as "defendant");

A. Part of the defendant's case

1) misunderstanding of facts and misapprehension of legal principles

A) Rape with the victim non-indicted 2 (hereinafter “crime 1”).

The judgment of the court below that found the defendant guilty of special rape even though he had no suppression of resistance by threatening the victim non-indicted 2 by threatening him, is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

B) Rape with the victim Nonindicted Party 1 (hereinafter “Nonindicted Party 2”)

(1) The judgment of the court below that the defendant was guilty for the second crime without having been at the scene of the crime was erroneous and adversely affected by the judgment.

(2) In around 2003, an investigative agency has already known and known about the second crime at the time of investigating the case (hereinafter referred to as "related case"), such as the punishment of sexual crimes and violation of the Act on the Protection, etc. of Victims, which became final and conclusive, but has omitted the subject of prosecution in the above case from the time of the expiration of the term of punishment of the defendant, and subsequently has immediately omitted the subject of prosecution in the above case, and thus has abused the right of prosecution by allowing the defendant to suffer disadvantages that may not

2) Unreasonable sentencing

The sentence of the court below (seven years of imprisonment) is too unreasonable.

B. Part of the medical treatment and custody, attachment order, or medical treatment order request

Considering the fact that the defendant has no risk of recidivism by living in long-term confinement, the judgment of the court below ordering medical treatment and custody, attachment of an electronic tracking device (20 years), and a pharmacologic order (5 years) is unfair.

2. Judgment on misconception of facts and misapprehension of legal principles

A. As to the first crime

1) Summary of the facts charged

Around 16:20 on July 11, 2003, the Defendant: (a) at the Dong-gu, Daejeon ( Address 1 omitted); (b) around 16:20, the Defendant: (c) had the Victim Nonindicted Party 2 (V), who was in the Dong-gu, Daejeon ( Address 1 omitted); and (d) had the Victim open a door to the victim, stating, “I have opened a door to the front door and the front door.”

The defendant, at one hand, led the victim to the victim's face and intrudes into the victim's house with the victim's face, led the victim as a way to do so, blicked over the victim's hand, blicked the victim's hand, blicked the victim's resistance, blicked the victim's hand, and led the victim to the abandoned house located adjacent to the victim's house.

After continuing to go beyond the victim's ways, the Defendant: (a) threatened the victim with the victim "I know that I will attend any school, I know that I will know that I will attend the school, and if I know that I will end several times, I would know that I would end, I would like to kill I will me will not report you will me we will to do so, and if you will do so, I would like to go off all the half panty and panty." (b) the victim was suffering from all the part of the victim, and had sexual intercourse once with the victim.

Accordingly, the defendant carried dangerous objects and raped the victim.

2) The judgment of the court below

The court below found the victim non-indicted 2 guilty of special rape on the ground that the victim non-indicted 2 made a concrete and consistent statement from the investigative agency to the court below's trial, on the grounds that the victim's statement was highly reliable in light of the victim non-indicted 2's attitude, content, etc., and the circumstances acknowledged by the victim non-indicted 2's statement and other evidence at the time of the case, on the following grounds: (a) the victim non-indicted 2's statement was highly highly reliable in light of the victim non-indicted 2's statement and the fact that the defendant threatened the victim non-indicted 2 with dangerous article and raped the victim non-indicted 2 with the above knife.

3) Determination of the immediate deliberation

The conviction in a criminal trial ought to be based on evidence with probative value, which leads a judge to have a conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt as to the defendant's guilt, it is inevitable to determine the defendant's interest (see Supreme Court Decision 2005Do8675, Mar. 9, 2006, etc.).

The following circumstances are acknowledged based on the evidence duly adopted and investigated by the court below and the court below. ① On-site heading immediately after the crime of this case, the victim’s statement was indicated as follows: (i) "on-site heading after the crime of this case, the victim her knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife knife."

Therefore, the judgment of the court below which found a person guilty of special rape caused by carrying a deadly weapon is erroneous in the misapprehension of facts, which affected the conclusion of the judgment, and the defendant's assertion that points out

B. As to the second crime

(1) misunderstanding of facts

(A) genetic testing processes and results;

The results of genetic testing through DNA analysis, which is a method of scientific evidence, have high reliability so long as it is recognized that an appraiser with sufficient professional knowledge and experience conducts an appraisal using generally established standard testing techniques and the analysis of the results has been conducted through appropriate procedures (see Supreme Court Decisions 2007Do588, Sept. 20, 2007; 2004Do7418, Dec. 24, 2004, etc.).

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, i.e., victim non-indicted 1 reported the damage of this case to 112 on September 23, 2003 immediately after the case, 15:38, the victim's parents, and thereafter, the hospital collected contents within the victim's quality, etc., and the Msan East Police Station requested the National Institute of Scientific Investigation to collect the quality of the victim from the victim's side and appraise the victim's quality, and ii) the National Institute of Scientific Investigation conducted a sperm reaction from the victim's quality contents on October 14, 203. The victim's gene type was consistent with the defendant's DNA content at this time, and the victim's gene type was not found in the victim's quality data, and the victim's gene type was not found in the victim's quality test content at the same time, and it was found that the victim's victim's reliance was not yet found in the victim's reliance analysis process.

B) Other circumstances

According to the evidence duly adopted and examined by the court below and the court below, ① victim non-indicted 1 directly reported the damage of this case at around 15:38 on September 23, 2003 immediately after the crime, and Non-indicted 3 police station, which was called the victim upon the victim's report, conducted on the spot identification and inquiry at the victim's residence located in the Msan-si, Masan-si, the scene of the crime, and Non-indicted 4 got contacted with investigative agencies, ② The victim's father non-indicted 4 appears to have arrived at the victim's house under contact with the investigative agencies at the time of the crime and the court below at the time of the crime. The victim's non-indicted 1 appears to have no victim's panty on the day of rape, and the victim's statement to the victim's hospital at the time of ○○○, which was located on the day of rape, and the victim's new statement to the victim's clinic on the day of treatment.

C) As to the Defendant’s assertion

(1) Although the Defendant alleged that he was not present at the scene at the time of committing the second crime, there is no supporting material.

② On September 23, 2003, the Defendant stated that the Defendant collected the quality content of the victim at ○○ Hospital around 16:00 on September 23, 2003. In light of the criminal act and reporting time, it appears that it is difficult to collect the quality content at around 16:0 on the same day, and thus, it cannot be deemed as evidence of guilt. However, it is reasonable to view that the “16:00” stated in the written appraisal request is merely a statement of the approximate time. Thus, the Defendant’s above assertion is without merit.

③ The Defendant stated the report on occurrence of the case and the summary of the case on the appraisal request as to the second crime in a different manner from the second crime. However, according to the records, the Defendant alleged that the second crime was not committed. However, the Defendant stated the summary of the case report and the appraisal request as to the second crime in the “indecent act, such as making the victim unable to resist and forced to put the victim into the victim’s sexual organ by force,” but according to the investigation report prepared by the police officer belonging to the Mapo-dong Police Station in the Msan-dong Police Station on September 23, 2003, it appears that the victim was investigated into the same content as the second crime, and that there was a request for appraisal as to its content. However, considering the possibility of revealing the case on the part of the victim at the time, the Defendant did not accept the allegation that the Defendant prevented the second crime merely because it was likely to do so.

④ In light of the difference between the fixed amount of genetic test on Nonindicted 2 of the victim Nonindicted Party 2, who respondeded as of July 24, 2003 and the fixed amount of genetic test on Nonindicted Party 1, the Defendant asserted to the effect that one of the two genetic test results was fabricated, but the National Institute of Scientific Investigation assigned each unique serial number according to the principal and branch of the National Institute of Scientific Investigation on the case requested by the National Institute of Scientific Investigation. The receipt number was created in the order of the year requested, the principal, branch, and the receipt number. Thus, the Defendant’s above assertion has no merit.

⑤ In light of the fact that the Defendant stated the genetic assessment report (DA No. 1 omitted) at the reply on October 14, 2003, and that (DA No. 2 omitted) stated it, it is probable that the above appraisal report was subsequently altered. However, (DA No. 2 omitted) is obvious that it is a clerical error in (DA No. 1 omitted) and such clerical error has a critical effect on the credibility of the appraisal result. Thus, the Defendant’s above assertion is without merit.

6) The Defendant asserts that the victim non-indicted 1’s gene assessment report cannot be trusted in view of the difference between the two copies of the gene assessment report. However, at the time of 2003, two copies of the assessment report are printed out, and then one copy is sent to the relevant police station, and the other one is kept in custody and managed by the National Institute of Scientific Investigation. Thus, the Defendant’s assertion is without merit.

7) The defendant asserts that the preservation period of ○○ Hospital’s medical records has already expired, and the date and time of the receipt of the medical records and the date and time of the report are not indicated, or that the date and time of the report are not consistent with each other on September 23, 2003 or September 24, 2003, the confirmation of ○○ Hospital’s medical records cannot be believed. However, the confirmation of ○○ Hospital’s medical records was prepared for 10 years for the preservation period of the victim Nonindicted 1’s medical records and the date and time of receipt of the body was replaced by the examination number, name, gender, and date of receipt of the body. The date and time of report refer to the date from which the examination results were derived by each body, and the examination results are stated as they are, and the date and time of reporting the results of the blood register do not have any influence on the credibility of the above Defendant’s medical records and thus, the above confirmation does not affect the above conclusive medical records.

D) Sub-committee

Therefore, in light of the credibility of the results of the genetic test, the details of the report on the damage of this case, the details of the victim’s treatment, and the statements of the witness Nonindicted 4 as a result of the genetic test that the gene type detected in the victim Nonindicted 1’s quality corresponds to the Defendant’s DNA, it can be sufficiently recognized that the Defendant committed the crime of this case. Accordingly, this part of the Defendant’s assertion is without merit.

(2) Abuse of authority to prosecute

In a case where it is deemed that a prosecutor voluntarily exercised his/her right to institute a public prosecution and gives a substantial disadvantage to the defendant, it can be denied the validity of the institution of public prosecution by regarding it as abuse of the right to institute a public prosecution. Here, the arbitrary exercise of the right to institute a public prosecution is not sufficient simply by negligence in the course of performing his/her duties, and at least dolusence or any intention is required (see Supreme Court Decisions 2001Do3026, Sept. 7, 2001; 2007Do5313, Dec. 27, 2007, etc.).

According to the evidence duly adopted and examined by the court below and the court below, the Msan East Police Station received a reply of the results of the genetic test from the National Scientific Investigation Institute that the gene type of the male found in the victim non-indicted 1's quality is the same as that of the male found in the investigation case in the Busan Northern Police Station, and the Busan Northern Police Station. The Busan Northern Police Station received the result of the defendant's blood genetic test from the National Institute of Scientific Investigation on October 17, 2003. The above appraisal statement contains not only the same as the male's gene type detected discovered in the creative Police Station, the Busan Northern Police Station, but also the fact that the victim's genetic type was also the same as the male's gene type discovered in the case being investigated in the Busan Northern Police Station at the Busan Northern Police Station at around October 14, 2003.

However, according to the following circumstances acknowledged by the court below and the court below, the Busan Northern Police Station did not send the results of the above appraisal to the Msan East Police Station around October 17, 2003. ② At the time, each investigation agency and the National Science Investigation Agency only have information within their own jurisdiction, and each investigation agency did not properly conduct a business cooperation system such as sharing DNA identification information between investigation agencies and the National Scientific Investigation Agency. ③ The Supreme Prosecutors’ Office provides for a prosecutor’s right to file a prosecution for the crime of this case at the same time after the investigation agency, which had investigated the crime of this case of this case of this case of this case of this case of this case of this case of this case of this case of which the second crime of this case of this case of this case of this case of this case of this case of this case of this case of the victim 1 of this case of this case of this case of the victim 2 of this case of this case of this case of this case of this case of this case of this case of this case of which the prosecutor’s punishment of this case of this case of this case of this case of this case of this case of this case of this case of prosecution of this case of 20.

Therefore, this part of the defendant's argument is without merit.

3. Determination on a request for medical treatment and custody, request for attachment order, or medical treatment order

According to Article 12(2) of the Medical Treatment and Custody Act, Article 9(5) of the Act on the Electronic Monitoring of Specific Criminal Offenders, and Article 8(4) of the Act on the Pharmacologic Treatment and Custody of Sexual Offenders, the judgment on the case of a request for a medical treatment and custody order, an attachment order, or a medical treatment order shall be sentenced simultaneously with the judgment of the accused case, and as seen earlier, the judgment of the court below on the first crime shall be reversed unlawfully. Thus, the above judgment of the court below can no longer be maintained at the same time after examination and judgment together with the above.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, Article 51 of the Medical Treatment and Custody Act, Article 35 of the Act on the Electronic Monitoring of Location Monitoring System for Specific Criminal Offenders, and Article 34 of the Act on the Pharmacologic Treatment of Sex Offenders, without examining the defendant's assertion of unfair sentencing, and the judgment of the court below is reversed, and it is again decided as follows after pleading.

The facts of the crime recognized by this court, the facts of the cause of the medical treatment and custody, the facts of the cause of the attachment order, the facts of the cause of the medical treatment order and the summary of the evidence are as stated in each corresponding column of the judgment of the court below, except for deletion of "in addition to removal of dangerous articles," such as "to bring knife knife (flost) which are dangerous articles in the kitchen and the victim," and "to carry dangerous articles" in Part 9 of Part 1 and Part 2 of the judgment of the court below in accordance with Article 36

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

Article 4 of the Addenda to the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 10258, Apr. 15, 2010; hereinafter the same shall apply), Article 5 (1) of the former Act on the Punishment, etc. of Sexual Crimes and Protection of Victims Thereof (amended by Act No. 10258, Apr. 15, 2010; hereinafter the same shall apply), Articles 319 (1) and 297 of the Criminal Act (amended by Act No. 10259, Apr. 15, 2010; hereinafter the same shall apply)

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act (mutual between each of the crimes in this case and the crimes in violation of the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, etc.)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. against Non-Indicted 1 with heavy criminal penalty)

1. Medical treatment and custody;

Articles 12 and 2(1)3 of the Medical Treatment and Custody Act

1. An attachment order;

Articles 9(1)1, 5(1)1, 5(1)3, and 4 of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (Amended by Act No. 11558, Dec. 18, 2012; hereinafter the same shall apply)

1. Imposition of obligations;

Article 9-2 (1) 2, 3, and 4 of the former Act on the Electronic Monitoring, etc. of Specific Criminal Offenders

1. Medical treatment orders;

Articles 8(1) and 4(1) of the Act on Pharmacologic Treatment of Sexual Impulses by Sexual Offenders

The crime of this case is committed by rape of a young victim who is only 14 years old and 10 years old at the time, and is not very good in light of the background of the crime, the method of the crime, and the age of the victims. The victims appear to have suffered from serious physical pain and mental suffering which are difficult to cure due to the defendant's act, and even until the ten years have passed, the victims seems to have suffered considerable mental suffering. Nevertheless, the defendant, while denying part of the case of this case, did not recover from damage to the victims until now, is disadvantageous to the defendant.

On the other hand, each of the instant crimes was committed on July 2003 and September 2003, taking into account the equity between the crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims (Rape, etc.) and the concurrent crime under the latter part of Article 37 of the Criminal Act. The Defendant was sentenced to 10 years of imprisonment in the above judgment. The fact that the term of imprisonment has already been terminated is favorable to the Defendant.

In full view of the above circumstances unfavorable or favorable to the defendant, and the age, character and conduct, environment, circumstances surrounding the crime, and circumstances after the crime, the punishment as ordered shall be determined.

The summary of the facts charged about the violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims (Special Rape, etc.) is as stated in Article 2-1 (A) of the above Act, and this shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, since there is no proof of crime as examined in Article 2-2-1 (a) (3) of the above Act. However, inasmuch as it is found that the victim non-indicted 2 was guilty of a crime of violation of the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (Offense of Inf

[Attachment]

Judges Lee Jae-soo (Presiding Judge)

1) At the time of the prosecutorial investigation into the relevant case, the Defendant asserts to the effect that all the cases indicated in the gene assessment report on the blood of the Defendant replyed to October 17, 2003 at the time of the prosecutorial investigation into the relevant case. Accordingly, according to the records, the Defendant presented the above written assessment at the time of the prosecutorial investigation into the relevant case, and stated that the victims were raped. However, in light of the fact that the Defendant was not directly mentioning the second crime, the victims whose name was the Defendant appears to refer only to the victims of the relevant case under investigation being sent at the time, and that it is difficult to readily believe that the Defendant was led to the confession at the time of the prosecutorial investigation into the relevant case, it is difficult to recognize that the Defendant voluntarily expressed the second crime at the time of the prosecutorial investigation into the relevant case, and there is no other evidence to acknowledge it.