2018No3134 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, Rape, etc.) and intrusion upon residence

2018 Bono30 (Joint Probation Orders)

A

Defendant-Probation Order Claimer and Prosecutor

Kim-defendant(s)(s)(s)(s)(s)(s)(s)(1)(s)(1

Attorney Kim Do-sung (Korean)

Seoul Eastern District Court Decision 2018Dahap216, 2018 Report11 (Consolidated) Decided November 2, 2018

January 31, 2019

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for three years.

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

The request for probation order of this case is dismissed.

1. Summary of grounds for appeal;

A. Defendant and the person requesting a probation order (hereinafter referred to as “Defendant”);

1) Mental disorders

The Defendant was under the influence of alcohol at the time of committing the instant crime, and was in a state of mental disability.

2) Unreasonable sentencing

The sentencing of the court below is too inappropriate.

(b) Prosecutors;

1) Unreasonable sentencing

The sentencing of the court below is too unjustifiable.

(ii) exemption from disclosure and notification orders;

In full view of the details and methods of the instant crime, and the details of the instant crime, it is unreasonable for the lower court to exempt the Defendant from issuing an order to disclose and notify personal information to the general public as long as it is necessary to prevent sexual crimes in advance.

3) Unfair rejection of a probation order

Although there is a risk of recidivism and recidivism of sexual crimes, it is unfair that the court below dismissed the defendant's request for probation order.

2. Determination

A. Part of the defendant's case

1) Determination as to the defendant's mental disability claim

According to the records, although the defendant was aware of drinking at the time of committing the crime of this case, in light of the circumstances revealed in the arguments of this case, such as the background of the crime of this case and the defendant's act before and after the crime of this case, it cannot be seen that the defendant lacks the ability to discern things or make decisions due to drinking, so the above argument of the defendant is without merit

2) Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

The crime of this case requires strict punishment against the defendant in light of the fact that the defendant was punished for habitual special larceny, and that the defendant invadeds on the residence of the victim even though he was punished for repeated special larceny, and that he attempted to rape by re-infusing the victim's residence, and that the crime of this case is not good, and that he did not have any mental shock and pain to the victim due to the crime of this case.

However, in light of the fact that the defendant recognized the crime of this case, the defendant's mistake is divided and contradictory to himself, that the victim does not want the punishment of the defendant, that there was no record of punishment for the sexual crime, that rape crime of this case was committed in the attempted crime, and that the crime of this case was committed in the attempted crime, and that other conditions of sentencing specified in the argument of this case, such as the defendant's age, character and behavior and environment, motive, means and consequence of the crime, circumstances after the crime, etc., the court below's punishment is too unreasonable. Thus, this part of the defendant's argument is justified, and the prosecutor's argument in this part is

3) Determination as to the prosecutor’s improper assertion of disclosure and rejection of notification orders

The Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes provides that the disclosure and notification of personal information of all persons who have committed sexual crimes in principle in order to defend our society from sexual crimes shall be exempted only where there are special circumstances that may not be exceptionally made. Here, whether the disclosure order and notification order constitutes "any special circumstances that may not disclose personal information" should be determined by comprehensively taking into account the defendant's age, occupation, risk of recidivism, characteristics of the offender, such as the crime, type, motive, process of the crime, outcome, seriousness of the crime, such as disclosure order or notification order, the degree of disadvantage and anticipated side effects that the defendant suffers from the disclosure order and notification order, effects on the prevention of sexual crimes subject to registration, and effects on the protection of victims from the sexual crimes subject to registration (see, e.g., Supreme Court Decision 2011Do16863, Feb. 23, 2012).

In full view of the aforementioned legal principles and the evidence duly adopted and examined by the court below, the following facts are found to have no record of punishment against the defendant for sexual assault crime, namely, that the crime of this case is not for many unspecified persons, that can be expected to some extent to prevent recidivism even through the registration of personal information of the defendant and the completion of sexual assault treatment program. In addition, considering the defendant's age, risk of recidivism, motive, process and seriousness of the crime, degree of disadvantage and anticipated side effects of the defendant's injury due to the disclosure order or notification order, and the prevention effect of sexual assault crime that can be achieved thereby, the court below's failure to disclose and notify personal information to the defendant is justified, and it cannot be said that there is any error as argued by the prosecutor of the court below.

B. Part of probation order case

1) The judgment of the court below

In full view of the following circumstances duly admitted by the lower court, i.e., that the Defendant had no record of being punished for a sexual crime before the instant crime, (2) the Defendant appears to have no record of sexual crime committed against many unspecified persons, and (3) the Defendant’s personal information registration against the Defendant and the completion of a sexual assault treatment program could have an effect to prevent recidivism, the lower court determined that the evidence submitted by the prosecutor alone cannot be recognized as having a risk of recommitting a sexual crime, and dismissed the Defendant’s request for probation order against the Defendant

2) The judgment of this Court

Article 5(1) and Article 21-2 subparag. 1 of the Act on the Electronic Monitoring, etc. of Specific Criminal Offenders (hereinafter referred to as the “Electronic Monitoring Act”) mean that there is a probable probability that a person subject to an application for an attachment order or a person subject to a probation order may injure the legal peace by committing a sexual crime again in the future. The risk of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the application for an attachment order or the person subject to the request for a probation order, the criminal conduct prior to the relevant crime, the motive and means of the relevant crime, the circumstances after the crime, and the situation after the crime, etc. (see, e.g., Supreme Court Decision 2014Do17294, Feb. 26, 2015).

In light of the above legal principles and records, the court below recognized the circumstances as stated in its judgment and judged that it is difficult to recognize the defendant as having a risk of recommitting a sexual crime, and dismissed the defendant's request for probation order. It is just and acceptable to dismiss the defendant's request, and there is no error as alleged by the prosecutor in the judgment below. Accordingly, the prosecutor'

However, Articles 21-8 and 9(5) of the Electronic Monitoring Act provide that the judgment on a probation order case shall be sentenced simultaneously with the judgment on a specific crime case. Thus, where the judgment on a case involving a probation order is reversed due to illegality, the case of probation order to be tried together with the judgment on a case involving a case involving a probation order shall be reversed (see Supreme Court Decision 2011Do453, 2011Do12, Apr. 14, 201). As seen earlier, the part of the judgment of the court below should be reversed, and therefore, the part of the judgment of the court below regarding the case of probation order cannot be reversed.

3. Conclusion

Therefore, the appeal by the defendant as to the part of the defendant's case among the judgment below is well-grounded, and there is a ground for ex officio reversal as to the part of the probation order case. Thus, the judgment below is reversed pursuant to Article 364 (6) and (2) of the Criminal Procedure Act and Article 35 of the Electronic Device Attachment Act

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the entries in each corresponding column of the judgment of the court below, and such facts are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 319(1) of the Criminal Act (the point of residence intrusion, the choice of imprisonment), Articles 15 and 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 297 of the Criminal Act (the point of attempted residence intrusion and rape, the choice of limited imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act: Provided, That the proviso of Article 42 of the Criminal Act shall not apply to the crimes of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes.

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, Article 50, and the proviso to Article 42 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, which has a heavier punishment]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Order to complete programs;

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;

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 (the preceding proviso 2-A. 3)

1. Exemption from an employment restriction order;

Article 56(1) proviso (amended by Act No. 15452, Mar. 13, 2018) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018) (in light of the Defendant’s age, power, risk of recidivism, circumstance and method of the sex offense of this case, possibility of the Defendant’s access to a sex offender using his/her occupation and position, possibility of facilitating the sex offense, disadvantage of the Defendant resulting from the employment restriction order, and preventive effects of the sex offense that the Defendant could be achieved, it is deemed that there are special circumstances where the Defendant is

Reasons for sentencing

The punishment shall be determined as per the text in consideration of the conditions, etc. of the aforementioned sentencing.

Obligation to Submit Personal Information

In cases where a conviction becomes final and conclusive with respect to the criminal facts of the instant violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes against the Defendant, the Defendant constitutes a person subject to registration of personal information under Article 42(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and thus, the Defendant is obligated to submit personal information to the competent authority pursuant to Article 43 of the same Act (in light of the above crime which causes the registration of personal information and the other crime, the punishment of the crime and the other crime, and the seriousness of the criminal justice, it is not recognized that the period of registration is unreasonable pursuant to Article

Determination as to the request for probation order

1. Summary of grounds for requesting the probation order;

The Defendant, as stated in the facts of the crime of paragraph (2) of the judgment below, has a habitle to intrusion on another person’s residence, such as intrusion on another person’s residence and punishment as a stolen fact, and thus, has a risk of repeating sexual crimes if a female exists in the relevant residence, and thus, is subject to probation order pursuant to subparagraph 1 of Article 21-2 of the Electronic Monitoring Act.

2. Determination

As seen above 2-b. The request for the probation order of this case against the defendant is groundless. Thus, it is dismissed in accordance with Articles 21-8 and 9(4)1 of the Electronic Monitoring Act.

Judge Park Jong-chul

Judges Kim Tae-ho

Judge Lee Jin-hun