Defendant and the respondent for attachment order

Both parties

Freeboard Kim (prosecution), users (public trial)

Attorney Sung-sung (Korean)

Daejeon District Court Decision 2013Gohap146, 2013 Jeon Jong21 (Consolidated) Decided December 18, 2013

All appeals filed by the defendant and the person subject to the attachment order and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant and the person to whom the attachment order was requested (hereinafter referred to as “Defendant”);

(i)misunderstanding of facts and misapprehension of legal principles

In light of the fact that the victim divided the conversation between the defendant and the defendant on the Internet hosting site (○○○○ and △△△△△△△△△△△), in particular, even though the procedure for self-certification and small payment is complicated and complicated, the victim divided the conversation with the defendant through the above site, the victim's own efforts to find the house of the defendant who is a long distance using public transportation, and the victim reconsting the defendant again after the first sexual intercourse, etc., the defendant was unaware of the fact that the victim was a intellectual disabled, and there was no sexual intercourse or indecent act by inducing the victim with the intellectual disability by a deceptive scheme.

【Unjustifiable sentencing

The sentencing of the lower court (three years of imprisonment, disclosure and notification order five years) is too unreasonable.

(b) Prosecutors;

The sentencing of the court below is too unjustifiable.

2. Determination on the part of the defendant's case

A. As to the defendant's assertion of mistake of facts

According to the evidence duly admitted and examined by the court below, ① the victim divided the conversation with the defendant through the Internet hosting site, ② the victim's own effort to find out the defendant's house at a long distance by means of public transportation, ③ the victim's first sexual intercourse after the victim's first sexual intercourse is recognized.

However, in full view of other circumstances acknowledged by the evidence above, namely, the victim's hosting at a computer or scam in the house despite the victim's knowledge of differentness (the victim's statement, investigation record, page 74 of the investigation record), and the victim's intelligent index is relatively higher than 30.09 with social index 54 up to 30.09, and the victim is accurately aware of the concept of the number such as resident registration number, the defendant's handphone number, and date, it is difficult to view that the victim has an intelligence sufficient to have a conversation by attending the Internet hosting site, or that the victim has an intelligence of the same degree as the general public even in other areas, in particular, sexual areas. Rather, as the court below properly decided, it is clear that the victim's understanding of sex is very low and the victim's ability to recognize that the act was sexual assault (the victim's refusal to cut his or her appearance is not a simple example to the refusal to cut his or her appearance).

In addition, the Defendant alleged that the victim, who became aware of the Internet hosting, found the house of the Defendant at latest from 00 to 800, and that the victim was unaware of the victim's intellectual disability because of the fact that the victim had reconscepted the Defendant again after the first sex relationship, but it is difficult to accept in light of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court. In other words, ① the Defendant sent the victim the side of the victim's entry into several times (as of December 28, 2012; December 30, 2012; January 32, 2013; ② the victim seems to have been aware of the victim's ability to see the victim's ability to see the victim's oral statement by dividing it into the victim's one, and then, the victim seems to have been aware of the victim's ability to see the victim's refusal to do so by the second day of February 3, 2013.

Therefore, the fact-finding of the court below is acceptable, and this part of the defendant's assertion is without merit.

B. As to the assertion of unfair sentencing by the defendant and prosecutor

In the crime of this case, the defendant did not exercise force, such as assault and intimidation, so far, there has been no criminal record as well as criminal punishment so far, and the mother's her mother is a cerebral friend and thus the need for support is a favorable condition for the defendant.

However, in light of the following factors: (a) the Defendant: (b) induced a disabled woman whose right to sexual self-determination is difficult to exercise due to intellectual disorder; (c) sexual intercourse and indecent act by compulsion; (d) the victim appeared to have a chronic response due to the instant crime; and (c) had been mentally and treated as an attacked tendency; (c) the Defendant did not understand the suffering of the victim; (d) the Defendant is responsible for the victim without understanding the suffering; (e) the damage to the victim was not recovered; and (e) other sentencing conditions indicated in the instant argument, such as the Defendant’s age, health condition, and the circumstances after the crime, the lower court’s punishment is too heavy or unab

Therefore, we cannot accept the argument of unfair sentencing by the defendant and prosecutor.

3. Judgment on the part of the case for which an attachment order is requested

When a defendant and a prosecutor have lodged an appeal against a prosecuted case, it is deemed that an appeal has been filed regarding an attachment order case pursuant to Article 9(8) of the Act on the Probation and the Electronic Monitoring, etc. of Specific Criminal Offenders. However, there is no statement in the grounds of appeal or the petition of appeal filed by the defendant and the prosecutor.

4. Conclusion

Therefore, the appeal by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jae-won (Presiding Judge)