Rape, Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, Rape, Violation of the Act on the Prevention of Rape, etc., Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (carmers, etc.) and Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media)

A

Defendant

Bags, iron bars, shots, Kim Jong-young (prosecutions), and type and leathers (public trial)

Law Firm Il-ho, Attorney Lee Young-young, Counsel for the defendant-appellant

Seoul Central District Court Decision 2018Gohap204, 233, 260 decided August 17, 2018;

695(Joint Judgment) Judgment

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 80 hours.

Information on the accused shall be disclosed and notified through an information and communications network for five years (Provided, That the summary of a sex offense shall be limited to the crimes of rape, the violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, the attempted rape, the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (ameras and photographing), the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

The defendant shall be ordered to place an employment restriction (including the prohibition of operation and the provision of actual labor) on children and juveniles-related institutions, etc. for five years.

1. Summary of grounds for appeal;

A. Unreasonable sentencing

The sentencing of the court below is too inappropriate.

(b) Unfair disclosure and notification orders;

Although there are special circumstances that prevent the disclosure of Defendant's personal information, it is improper that the court below ordered the disclosure and notification of Defendant's information for five years.

(c) Unfair employment restriction orders;

It is unfair that the court below ordered the defendant to be placed on employment for ten years at child and juvenile-related institutions, etc.

2. Determination

A. Determination on the assertion of unreasonable sentencing

The crime of this case is an inevitable punishment against the defendant, considering that the defendant rapes the victim B, commits an indecent act by force against the victim F, uses psychotropic drugs by leaving the victim K with strokes containing the ingredients of strokem on the strokes, makes the victim K k to commit rape, and takes the victim N's body against his will by using mobile phones, taking the victim N's body against the victim's will, furthermore, it is not good to commit the crime in this case, each crime of this case reveals considerable mental shock and suffering to the victims. The defendant committed various crimes such as indecent act by force, attempted rape, etc. while being investigated by rape against the victim B, and also planned and interviewed by the law on the crime of this case.

However, when considering the defendant's age, character and environment, motive, means and consequence of the crime of this case, the sentencing conditions specified in the argument of this case, such as the defendant's age, character and environment, motive, means and consequence of the crime, and the scope of the recommended sentence according to the sentencing guidelines of the Supreme Court Sentencing Committee, it is recognized that the sentence of the court below is too unreasonable, and thus, the defendant's punishment is too unreasonable, since it is recognized that there is no criminal history against the defendant, the defendant does not want to punish the defendant, and the victim N, B, and F from the investigative agency to the trial, and the victim K does not want to be punished by the defendant. This part of the defendant's argument is reasonable.

B. Determination on the unjust assertion of disclosure and notification order

The Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes and the Act on the Protection of Children and Juveniles against Sexual Abuse shall, in principle, allow disclosure and notification of the personal information of all persons who have committed sexual crimes and sex offenses against children and juveniles in order to defend our society from sexual crimes, and they shall be exempted from such disclosure and notification only in exceptional cases where there are special circumstances that may not exceptionally exist. Here, whether such disclosure 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, etc. characteristics of the crime, such as the type, motive, process, consequence, seriousness of the crime, etc., characteristics of the offender, such as the type of the crime, motive, consequence, and gravity of the crime, degree of disadvantage and anticipated side effects that the Defendant suffers, sex crimes subject to registration and sex offenses against children and juveniles, effects of registration and protection of victims from sexual crimes and sex offenses against children and juveniles (see, e.g., Supreme Court Decision 2011Do16863, Feb. 23, 2012).

In light of the above legal principles and the evidence duly adopted and examined by the court below, in light of the defendant's age, power, risk of repeating the crime of this case, the background and method of the crime of this case, the disadvantage of the defendant caused by disclosure and notification order, sexual violence crime that can be achieved thereby, and the preventive effects of the sex offense against children and juveniles, etc., it is difficult to view that there are special circumstances that the personal information of the defendant should not be disclosed, and it is difficult to view that the period too long is too unreasonable.

C. Determination as to the wrongful assertion of employment restriction order

According to 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), and Articles 2 subparag. 2, 3-2, and 56(1) and (2) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 15452, Mar. 13, 2018), where a sentence is imposed due to a sex offense against a child or youth or a sex offense against an adult (hereinafter referred to as "sexual offense"), a sentence shall be issued to operate a facility, institution, or place of business (hereinafter referred to as "child or juvenile-related institution") under each subparagraph of Article 56(1) for a period not exceeding ten years, except in extenuating circumstances where the risk of recidivism is significantly low or employment is not restricted (hereinafter referred to as "order to restrict employment").

In light of the Defendant’s age, power, risk of re-offending, background and method of the instant crime, sexual violence crime that may be achieved by the employment restriction order, and the prevention effect of sexual crimes, etc., which are acknowledged by comprehensively taking account of the evidence duly adopted and examined by the lower court, it is difficult to deem that there is a special circumstance that the risk of re-offending by the Defendant is significantly low, or that the Defendant should not be restricted from employment. However, this part of the Defendant’s assertion is partially reasonable, since the period of the employment restriction order against the Defendant is too too unreasonable.

3. Conclusion

Therefore, since the defendant's appeal is partially well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts constituting an offense recognized by this court and the steam on them is as stated in each corresponding column of the judgment of the court below, except for the alteration of the "written statement of the defendant" in the 5th and 7th page to the "written statement of the court at the trial of the defendant". Thus, they are cited in accordance with Article 369

Application of Statutes

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

Article 297 of the Criminal Act, Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act, Articles 300 and 297 of the Criminal Act, Article 61(1)5, and Article 4(1)1 and 2 subparag. 3(d) of the former Act on the Control of Narcotics, Etc. (Amended by Act No. 15481, Mar. 13, 2018); Article 14(1) of the former Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 1597, Dec. 18, 2018; hereinafter referred to as “Rape”); Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Use of Communications Media; Selection of Imprisonment); Article 13 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Amended by Act No. 15977, Dec. 18, 2018)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment of concurrent crimes for rape prescribed by the most severe punishment and the nature of the crime)

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, and the main sentence of Article 21(2) of the Act on the Protection of Children

1. Order to disclose and notify;

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. 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, Mar. 13, 2018)

Reasons for sentencing

In consideration of the above conditions of sentencing, etc., the punishment shall be determined as per the order within the scope of the recommended sentence according to the sentencing guidelines of the Supreme Court.

Registration of Personal Information

In a case where a conviction becomes final and conclusive with respect to the crime of rape in this case against the defendant, violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, attempted rape, violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (obscenity using communications media), 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 is obligated to submit personal information to the competent authority pursuant to Article 43 of the same Act (in light of the punishment of each of the above crimes and the remaining crimes which cause the registration of personal information, and the severity of the criminal justice, it is not recognized that the period of registration is unreasonable to determine pursuant to Article 45

Judge Park Jong-chul

Judges Kim Tae-ho

Judge Lee Jin-hun

1. 1. Scope of applicable sentences by law: Imprisonment with prison labor of three years to 45 years;

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

A. Rape

[Determination of Punishment] General Criteria for Sex Offenses, Type 1 (General Rape)

[Special Sentencing] Disapproval of Punishment (Discretionary Elements)

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 3 years (Mitigation)

(b) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse;

[Determination of Type] A crime of indecent act by force (subject to the age of 13 or more) by force on the grounds of the general standards on sexual crimes.

【Special Aggravation of Punishment (Discretionary Elements)

[Extent of Recommendation] One year and two years of imprisonment (Mitigation of Mitigation)* Juvenile Indecent Acts by compulsion shall be included in Type 2, but the upper limit and lower limit of the scope of sentence shall be reduced to 2/3.

(c) Violation of the Act on the Control of Narcotics, etc.;

[Determination of Type] 2 Medication, Simple Possession, etc. (mariju, Do administration, item (d) and (e), etc.)

【Special Esponsor ] Where there is a reason to criticize in the motive of the crime (Aggravated factor).

[Scope of Recommendation] Aggravation, 10 months to 2 years of imprisonment

(d) Scope of the recommended punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than three years (limited to each of the above crimes on which the sentencing criteria are set, and the violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes for which no sentencing guidelines are set, and violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (the crime of obscenity in communications media and attempted rape to which the sentencing guidelines are applied as attempted are concurrent crimes under the former part of Article 37 of the Criminal Act, it shall be set at the lowest limit of the recommended punishment on the sentencing criteria for the crime for