(영문) 서울중앙지방법원 2017.2.10. 선고 2016고합1138 판결

Disclosure information on the accused shall be disclosed through an information and communications network for five years, and the notified information shall be notified during the aforesaid period.

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

Reasons

Criminal facts

1. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

A. On August 28, 2016, at around 03:30, the Defendant and the person subject to a request to attach an attachment order (hereinafter referred to as “Defendant”) opened a 000 public announcement note in Gangnam-gu Seoul Metropolitan Government D and intrudes into the victim E (nive, 46 years of age) by visiting the second floor through the corridor and not corrected in front of the living room of the victim E (nive, the age of 46), and then, the Defendant and the person subject to a request to attach an attachment order (hereinafter referred to as “victim”) committed an act of self-feasing the victim by taking out his sexual organ in front of the victim, shakinging him with his her sc

B. At around 09:00 on September 16, 2016, the Defendant opened a 000 string door door in Seoul, Gangnam-gu Seoul, and intruded into the 2nd floor corridor by a visit that had not been corrected in front of the living room in the victim G (the age of 22). On the part of the victim’s head, the Defendant her sexual organ was taken out from the part of the victim’s head, and the Defendant was asked the victim to the part above the string part of the victim.

Accordingly, the defendant invadedd the victim's residence, and committed indecent acts by taking advantage of the victim's failure to resist.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

At around September 30, 2016, the Defendant discovered that multi-household lending in Gangnam-gu Seoul Metropolitan Government H was opened with windows of 000, the above 2nd floor of Ha, followed up the wall by going through a window and then intrudes into the wall through the window, and then, the victim I (15 years of age) who was being frighted by the victim I (15 years of age) who was frightd by the her sexual organ, and frighted by the frighting the victim's face, and frighted by the defendant, such as frighting the victim's sound and frighting the defendant, and frighting the victim's face, 3 times more than three times more than three times, while frighting out of the wall, and frighting the victim's chest and the victim's chest were followed by the victim's finger and the victim's finger.

As a result, the defendant invadedd the victim's residence and forced the victim to commit an indecent act, and in the process, the defendant committed an act on the part of the left side of the safe-gu blood and the left side of the victim requiring treatment for about two weeks.

Facts of the cause of attachment order

On January 10, 2011, the Defendant was sentenced to a suspended sentence of two years and six months by committing a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc. in Custody) at the General Military Court on the 35th Military Service on January 10, 2011, and was sentenced to a suspended sentence of four years and six months, and the Defendant committed a sexual crime, including a sexual crime against a person under the age of 19, on two or more occasions, and

Summary of Evidence

1. Defendant's legal statement;

1. Each police statement to G and E;

1. Stenographic records of the police assigned to I;

1. Requests for appraisal, investigation reports, investigation reports (in response to requests for appraisal), investigation reports ( Results of response to the collection of the site), and investigation reports (clothe of the victim, and replys to the request for appraisal of cigarette butts of the suspect);

1. Medical records for victims of sexual assault, investigation reports (Submission of a written diagnosis of injury of a victim), and investigation reports (to hear statements of the victim I);

1. A photograph of damage, investigation report (related to the attachment of a photograph of the victim's body);

1. The risk of recidivism of a sexual crime committed in the judgment: (a) the following circumstances recognized by the above evidence and the written investigation before the request, i.e., the defendant committed a sexual crime against three victims including the victim under the age of 19 years, despite the fact that there was a record of suspended execution due to a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. As described in the judgment, the victims of the above crime committed a sexual crime against three victims including the victim under the age of 19 years. (b) The victims of the crime committed a sexual crime by intrusion upon the residence of an unspecified number of victims with no one-day space between the defendant and the victim, and (c) the defendant was found to have escaped immediately after the occurrence of the crime under paragraph (2) of the judgment, but the crime committed by the defendant seems to have gradually been committed, such as assaulting the victim and injuring the victim, and the result of the evaluation of the risk of sexual crime against the defendant, 12 points in assessing the risk of recidivism and danger of recidivism, 1.

Judgment on the Defendant and defense counsel's argument

1. The assertion;

In relation to the crime under Paragraph (2) of the holding, the defendant only had the intention of escape at the time of the act of assault, and did not have the intention of indecent act by compulsion, and the defendant's act of assault and indecent act by indecent act by indecent act by indecent act by indecent act by indecent act by indecent act

Since there is no causal relationship between the above, the defendant's act does not constitute a violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, but constitutes a concurrent crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (a crime of quasi-in

2. Determination

The result of "injury" in the crime of violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is sufficient if not only an assault occurred from an indecent act by force or an assault used as a means of indecent act by force, but also an opportunity to commit an indecent act by force. The following circumstances can be acknowledged by the evidence duly adopted and investigated by this court: (i) the victim is suffering from self-defense by the victim who was diving by the defendant; (ii) the victim was informed of the victim's shoulder or the defendant; (iii) the victim was immediately aware of the victim's face; (iv) the victim committed an indecent act by force; and (v) the victim committed an indecent act by force; and (v) the victim's resistance and the victim's body fighting with the victim; and (v) the victim's act of assault and force by force by force by force; and (v) the victim's act of assault and force by force by force by force by force by force by force by force by force by force by force by force.

The defendant and defense counsel shall not be accepted.

Application of Statutes

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

Articles 8(1) and 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 298 of the Criminal Act (the occupation of an indecent act by compulsion of residence and the choice of a limited term) of the Criminal Act, Article 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 299 of the Criminal Act (the occupation of an indecent act by compulsion of residence and the

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

1. An order for disclosure and notification;

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the main sentence of Article 49(1) and the main sentence of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Issuing an order to attach an electronic tracking device and matters to be observed therein;

Registration of personal information of Article 5(1)3 and 4-3, Article 9(1)1-4, the main sentence of Article 9(2), Article 9-2(1)3 and 4 of the Act on Probation, Electronic Monitoring, etc. of Specific Criminal Offenders

Where a conviction becomes final and conclusive on the facts constituting a crime in the judgment, the defendant is subject to registration of personal information pursuant to Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

Reasons for sentencing

1. Scope of applicable sentences: Imprisonment for a period of five years to twenty-two years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Basic crime - Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

[Determination of Punishment] The type 5 (Indecent Act by Indecent Act, such as Residence) shall be applied in cases where the result of bodily injury to a sex offender was caused.

[Special Mitigation] Minor Injury

[Scope of Recommendation] Reduction Area (five years of imprisonment - eight years of imprisonment)

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

[Determination of Type] Crimes of Indecent Act by Compulsion (subject to 13 years of age or older) on the General Standards for Sexual Crimes

[Scope of Recommendation] Basic Territory (two years and six months of imprisonment - five years of imprisonment)

3. Determination of sentence;

[Unfavorable circumstances] The crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act by force) is deemed to have been committed by the Defendant by intrusion upon a public official who resides in the night or a house in the night, or a house in the night, and thereby, the victims may feel a great sense of sexual shame. The crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) is punishable by the Defendant’s act of assaulting a house in the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the middle of the term.

【Dissecing circumstances】 The bodily injury suffered by the victim of the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.) is minor. The defendant has divided and reflected his mistake.

In addition, the defendant's age, character and conduct, environment, family relationship, motive and circumstances of each of the crimes of this case, circumstances after the crime, etc. shall be comprehensively considered and the punishment shall be determined as ordered by the order.

Judges

Judge of the presiding judge;

Judges Kim Gin-han

Judges fixed-type

Note tin

1) KSAS is classified as from 13 points to 13 points, and from 25 points to 25 points, the risk of recidivism is high.

2) Since an order to complete a program under Article 9-2(1)4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders is imposed on the Defendant as indicated in the attached Form, the order to complete a program is not concurrently imposed pursuant to the proviso to Article 16(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

3) The Defendant and his defense counsel asserted that, at the time of committing the crime under paragraph (2) of the holding, the circumstance where the Defendant was unable to recognize that he was under the age of 19 ought to be considered. However, the Defendant’s perception of the age of the victim, which is the requirement under Article 5(1)4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, should not be considered as a requirement for an attachment order (see, e.g., Supreme Court Decision 2011Do5813, Jul. 28, 2011). The foregoing assertion is rejected.

4) The period of attachment under the main sentence of Article 9(1) and 1 of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders is between 10 and 30 years, but a sexual crime is committed against a person under the age of 19, and thus the lower limit is aggravated by twice pursuant to the proviso to Article 9(1) of the aforesaid Act.