(영문) 부산고등법원 2013.11.13.선고 2013노312 판결

1. The summary of the grounds for appeal (the defendant and the person to whom the attachment order is to be requested; hereinafter referred to as the "defendant");

A. Part of the defendant's case

(1) misunderstanding of facts

The Defendant did not know that the victim was a juvenile at the time of committing the instant crime.

2) Unreasonable sentencing

The punishment of the court below (five years of imprisonment, five years of disclosure order, five years of location tracking device attachment order) is too unreasonable.

B. Part of the attachment order case

Although the defendant is not recognized to have the recidivism of sexual crimes and the risk of recidivism, it is unlawful for the court below to accept the request for the attachment order of this case.

2. Determination

A. Determination as to the defendant's case

1) Determination ex officio.

Article 3(4) of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Presidential Decree No. 10391, Jul. 23, 2010) (amended by Presidential Decree No. 10391, Jul. 23, 2010) provides that “any person who has not yet been finally and conclusively determined by the time of the final and conclusive judgment among those subject to an order for perusal or release for committing an offense (violation) prescribed by the Act on the Protection of Juveniles from Sexual Abuse (Act No. 7801) or the Act on the Protection of Juveniles from Sexual Abuse (Act No. 8634, Jul. 12, 2012) may be ordered to disclose to the general public pursuant to Article 38 of the Act on the Protection of Children and Juveniles against Sexual Abuse (see, e.g., Supreme Court Decisions 2010Do16376, May 26, 2011; 2010Do51283, Jul. 12, 2012).

However, the criminal facts of this case against the defendant are that the defendant had sexual intercourse on March 6, 2007. Thus, pursuant to Articles 24 (1) and 22 (1) of the former Act on the Protection of Juveniles from Sexual Abuse (wholly amended by Act No. 8634 of Aug. 3, 2007), it is reasonable to issue an order to disclose only the "a person who is deemed to have a risk of committing a crime under Article 20 (2) 6 through 8 among those who were sentenced to imprisonment without prison labor or heavier punishment or exempted or sentenced to the execution of all or part of the final punishment after being sentenced to imprisonment without prison labor or heavier punishment on more than two occasions for the crime under Article 20 (1) 6 through 8 of the former Act on the Protection of Juveniles from Sexual Abuse (wholly amended by Act No. 8634 of Aug. 3, 2007). However, since the defendant did not have been sentenced more than twice to disclose the criminal facts of this case at the time of the crime of this case, it cannot be acknowledged.

Nevertheless, the court below ordered the defendant to disclose registered information under Article 38 (1) 1 and (3) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 10260, Apr. 15, 2010). The court below erred by misapprehending the legal principles on the crimes subject to Article 3 (4) of the Addenda, which affected the conclusion of the judgment.

On the other hand, the disclosure order is an incidental disposition that is sentenced simultaneously with the judgment of a sex offense case against a child or juvenile, and where the whole or part of the disclosure order is illegal, the part of the remaining defendant's case should be reversed in its entirety, even if there

However, despite the above reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts is subject to the judgment of this court, and this is also examined.

2) Determination of misunderstanding of facts

In full view of the evidence duly admitted and examined by the court below, i.e., ① the victim's statement to the effect that it is difficult for the victim to clearly state the defendant's identity before and after the crime of this case, since it appears that the victim appeared in the police station to help prepare the suspect monet, and that it is difficult for the victim to clearly state his/her credibility by considering the following circumstances: (a) the victim's statement to the effect that it is hard for the victim to clearly state his/her personal information from the first police investigation conducted at the Busan Packsaw Support Center; and (b) the victim's statement to the effect that it is difficult for the victim to clearly state his/her personal information, such as the defendant's oral statement or the situation at the time of the crime of this case; and (c) the victim's statement to the effect that it is difficult for the victim to clearly state his/her personal information, such as the defendant's oral statement or his/her address; and (d) the victim's statement to the effect that it was made in detail by the victim's statement.

B. Determination on the claim for attachment order

As a result of the evaluation by the Korea-SORAS on the defendant, the risk of recidivism falls under an intermediate level with 10 points in total and 13 points in total as a result of the evaluation by the PC-R of the risk of sexual offenders against the defendant, and 13 points in total as a result of the evaluation by the PC-R of the mental disorder, and the degree of acceptance of the rape norms is also low. However, prior to the crime of this case, the defendant has a record of having been sentenced to imprisonment for committing a sexual crime, but the defendant had a record of being sentenced to imprisonment for committing a sexual crime on one occasion even before the crime of this case. The past sexual record of the defendant has been rape three times by threatening the victim as a deadly weapon. This case and its subject and method of the crime of this case, and other similar circumstances revealed in the records such as the character, character, environment, awareness and attitude of the sex of the defendant who is recognized by the contents, motive, etc. of the crime of this case, it can be recognized that the defendant has a risk of recidivism of a sexual crime.

Furthermore, even if examining the attachment period, if we comprehensively evaluate the circumstances such as the contents, motive, and background of the instant crime, Defendant’s character, conduct, environment, and attitude of sex, etc., as seen earlier, the lower court’s measure that imposed five-year attachment period against the Defendant is deemed justifiable.

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

3. Conclusion

Therefore, the part of the judgment of the court below on the defendant's case causes the grounds for ex officio reversal as seen above. Thus, the part on the defendant's case among the judgment below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant's argument on unfair sentencing, and the following is again decided after oral argument. Since the appeal on the part on the defendant's request for attachment order is without merit, Article 35 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders and Article 364 (4) of the Criminal Procedure

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this court is identical to the entries of the judgment below, and thus, it is accepted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

The former Act on the Protection of Juveniles against Sexual Abuse (amended by Act No. 8634 of Aug. 3, 2007);

Article 10(1) of the Criminal Act, Article 297 of the Criminal Act (Provided, That the upper limit of imprisonment shall be April 2010)

15. Imprisonment with prison labor for 15 years specified in the main sentence of Article 42 of the Act (amended by Act No. 10259);

1. Handling concurrent crimes;

The latter part of Article 37 and the main sentence of Article 39(1) of the Criminal Act (trade between the above crime and special larceny for which judgment becomes final and conclusive)

Reasons for sentencing

The fact that the defendant committed rape itself is recognized and is against the wrongness, and the fact that the case of this case is in the relation of special larceny for which the judgment has become final and the concurrent crimes under the latter part of Article 37 of the Criminal Act, and the equality in the case of the judgment is to be considered as favorable to the defendant.

However, the crime of this case was committed by the defendant while the defendant was under 16 years of age at the time, and assault and rape the victim after confirming the identity of the victim. The crime of this case was committed very poor in light of the details and contents of the crime, and the method of the crime. The defendant was sentenced to imprisonment for three years due to the violation of the Act on the Punishment of Sexual Crimes and the Protection of Victims (Special Rape, etc.). The defendant committed the crime of this case again in the same kind without being aware of the fact that he was under suspension of execution. The mental and physical suffering suffered from the crime of this case seems to be considerable, and the victim still files a petition for the defendant's severe punishment even after six years have passed since the crime of this case.

In addition, the sentencing conditions shown in the arguments of this case, such as the defendant's age, character and conduct, family environment, motive and background leading to the crime of this case, and circumstances before and after the crime of this case, shall be determined as the sentence of the punishment as ordered.