2012 Highest 1543,2018 Highest 1191(combined) and the offender of the sexual crime

A violation of the Act on Special Cases concerning Punishment, etc.

Use and photographing of merass, etc.)

A

Kim Jong-Un, Shin Woo (Court of Second Instance), Haak (Court of Second Instance)

Attorney Doh-ho (Korean)

January 25, 2019

A defendant shall be punished by imprisonment for two years.

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

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

One telephone that has been seized (No. 547 No. 5547 of the Seoul Central District Prosecutors' Office) shall be confiscated.

Criminal facts

"2012 Gohap154"

On October 17, 2012, at around 23:40 on October 17, 2012, the Defendant: (a) taken the victim’s neck in front of the house of the victim C (n, 54 years of age) located in Gangnam-gu Seoul Metropolitan Government; (b) prevented the victim from taking away his arms due to the danger of escape; and (c) prevented the victim from taking away his arms with his left hand; and (d) took the money and valuables by force; (b) was arrested to D, etc., who was under the influence of on the part of the victim C (n, 54 years of age); and (c) did not carry out any attempted money and valuables

[2018Gohap1191]

On August 22, 2018, around 22:33, the Defendant taken two-minutes of the fray of the said victim by using a camera attached to his cellphone 6 mobile phone from the victim G (n, 30 years of age) boarding and leaving the E-gu, Seoul Special Metropolitan City.

Accordingly, the defendant taken the body of the victim who could cause sexual humiliation or shame against his will.

Summary of Evidence

"2012 Gohap1543"

1. Defendant's legal statement;

1. Statement to C by the police;

1. Damage photographs;

[Defense Counsel of the defendant asserts to the effect that the defendant's defense counsel may think that the defendant's act of cutting the brut itself is a robbery and have led to the confession of the intention of robbery without clarifying the meaning of robbery.

However, in the police investigation, the defendant made a statement that he saw the victim's timber, led the victim from the defect of escape, asked the victim who was in his house, and asked him whether he was in charge of the crime of robbery, and if there is no room to do so, he asked the victim to live in his house (in the investigation record No. 27), and answer that he should live in many cases depending on the amount of questions whether he was punished for robbery in China (in the investigation record No. 29), and that the prosecutor asked the victim about why why why why he was the victim's timber was distorted (in the investigation record No. 53 of the investigation record). In light of the contents of the defendant's statement, the defendant's testimony appears to have understood the meaning of robbery, and it can be recognized that the defendant started to commit the crime of robbery by force on purpose of robbery. Accordingly, the defendant's defense counsel's allegation is not accepted).

"2018 Gohap1191"

1. Statement 1, G and H of the defendant in court;

1. Records of seizure and the list of seizure;

1. Responses to the results of digital evidence analysis;

Application of Statutes

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

Articles 342 and 333 of the Criminal Act; 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) (amended by Act No. 15977, Dec. 18, 2018; the selection of imprisonment)

1. Attempted mitigation;

Articles 25(2) and 55(1)3 of the Criminal Act (the crime of attempted robbery)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, Article 50, and the proviso of Article 42 of the Criminal Act (within the scope of the sum of the long-term punishments of both crimes prescribed in the crime of attempted robbery with heavier punishment)

1. Confiscation;

Article 48(1)1 and 1. Order to complete a program under the Criminal Act

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

1. An employment restriction order;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018); Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Jan. 16, 2018)

Main text

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an order to disclose or notify information, 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 (the defendant has no record of criminal punishment for sexual crimes prior to the instant case, and the defendant’s sentence of imprisonment to the defendant, registration of personal information, orders to complete sexual assault treatment programs, restrictions on employment to institutions related to children and juveniles, etc. are likely to have an effect to prevent recidivism. In addition, considering the defendant’s age, environment, motive and consequence of the crime, method and consequence of the crime, the degree of disadvantage and anticipated side effects of the defendant's injury caused by the disclosure order, and the effect of the protection of the victim, it is determined that there are special circumstances where the disclosure or notification of the defendant’s personal information should not be disclosed or notified.

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for one year and six months to twenty years; and

2. The offense of attempted robbery during which the sentencing criteria are not applied is an attempted crime, and the offense of violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes is not set out.

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, motive, means and result of the crime, and various factors of sentencing as shown in the argument of this case, such as the circumstances after the crime, shall be determined as ordered in comprehensive consideration.

○○ Unfavorable Circumstances: Each of the instant crimes was committed by the Defendant, according to the victim C, who returned home at night, voluntarily withdrawn money and valuables, and taken the body of the victim G, who may cause a sense of sexual shame, against his will. In light of the circumstances and methods of the instant crime, etc., the crime is not good. The Defendant, after committing the attempted robbery of this case, returned to China for a long time after departing from China, and returned to the Republic of Korea, and committed the instant crimes of taking pictures using the instant camera, etc., and committed the instant crimes. In addition, the Defendant did not receive any tolerance from the victims.

The circumstances favorable to ○: (a) the attempted robbery of this case was committed against the attempted attempt. The Defendant recognized and reflected each of the crimes of this case; and (b) there was no record of criminal punishment in Korea other than each of the crimes of this case.

Where a conviction becomes final and conclusive in respect of a crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Ameras, Use and Screening of Cameras, etc.) in the judgment that is subject to registration and submission of personal information, the accused 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

Meanwhile, with respect to the defendant, a sex crime which causes the registration of personal information under the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and other crimes are concurrent pursuant to Article 37 of the Criminal Act and the punishment is determined pursuant to Article 38 of the Criminal Act. The period for registering personal information resulting therefrom is 15 years pursuant to Article 45(1)3 and (2) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes. However, in full view of the nature of each of the crimes in this case and the severity of the crimes, it is deemed unreasonable to determine the period of registration as above, and therefore, the period for

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu